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OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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in  2008  with  funding  from 

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SELECTION  OF  CASES 


ON 


THE  CONFLICT  OF  LAWS 


BY 


JOSEPH    HENRY    BEALE,   Jr. 

PROFESSOR    OF    LAW    IN    HARVARD    UNIVERSITY 


IN   TWO   VOLUMES 
Vol.  I 


CAMBIIIDOE 
HARVARD    UNIVERSITV    PRESS 


T 

33655  C5 
1901 


f  SELECTION  OF  CASES 


THE  CONFLICT   OF  LAWS 


BY 

JOSEPH    HENRY    BEALE,   Jr. 

PROFESSOR    OF    LAW    IS    HARVARD    UNIVERSITY 


Vol.  L 
JURISDICTION  :  REMEDIES 


CAMBRIDGE 
HARVAKI)    rXIVERSlTV    PRESS 


84S371 


Copyright,  1900,  1907, 
Bt  Joseph  Henry  Beale,  Je. 


SEiiibtrsttg  Pr«s: 
John  Wilson  and  Son,  Cambridge,  U.S.A. 


PREFACE. 


The  topic  of  the  Common  Law  upon  which  Judge  Story  has 
imposed  the  title,  The  Conflict  of  Latvs,  consists  of  four  parts, 
different  in  origin,  though  closely  related  to  one  another  in  their 
practical  application.  The  Conflict  of  Laws  is  first  concerned 
with  the  jurisdiction  of  States,  —  the  extent  of  their  legislative 
and  judicial  power,  and  of  the  obligation  and  right  of  individuals 
to  obey  and  to  take  advantage  of  the  legislation  of  one  or 
another  State.  These  are  questions  of  international  law,  which 
should  properly  be  decided  in  every  country  in  the  same  way. 
The  topic  is  next  concerned  with  the  creation  of  legal  rights  and 
obligations,  as  a  result  of  the  sovereign  action  of  some  State ; 
often  an  international  matter,  though  the  questions  involved  are 
rather  questions  of  foreign  fact  than  of  law.  The  next  concern 
of  this  branch  of  the  law  is  the  recognition  and  enforcement 
within  one  State  of  rights  and  obligations  which  have  been 
created  in  another  State ;  a  question  not  in  any  sense  inter- 
national, but  to  be  determined  in  accordance  with  the  municipal 
law  of  the  State  concerned.  Finally,  there  remains  to  determine 
the  legal  process  by  which,  if  at  all,  the  foreign  right  shall  be 
enforced  ;  also  obviously  a  municipal  question. 

But  though  the  doctrines  which  make  up  the  topic.  The  Con- 
flict of  Laws,  are  of  various  origin,  they  all  form  part  of  the 
Common  Law  of  England,  and  have  been  adopted  as  such  in  the 
States  of  the  American  Union  ;  they  are  law  with  us,  not  because 
they  arose  in  international  comity  and  usage  or  in  municipal  prac- 
tice, but  because  they  are  acted  upon  in  our  courts.  The  name, 
Private  International  Law,  sometimes  applied  to  the  whole  topic, 
is  therefore  inadequate  and  misleading. 

This  collection  of  cases  is  the  result  of  a  seven  years'  experience 
in  teaching  the  Conflict  of  Laws.     The  arrangement  of  the  sub- 


Vi  PKEFACE 

ject  may  be  open  to  logical  objections ;  but  there  seemed  to  be 
sufficient  practical  reason  for  the  order  adopted.  Most  of  the 
cases  here  printed  were  decided  in  the  English  and  American 
courts ;  but  valuable  cases  in  the  British  Colonial  courts  have 
also  been  printed.  In  these  Colonies,  as  in  the  United  States, 
the  principles  of  the  Conflict  of  Laws  are  of  especial  importance, 
since  in  them  business  transactions  are  seldom  confined  within 
State  or  Colonial  lines. 

Several  foreign  cases  will  be  found  in  the  collection.  So  far 
as  tlie  rules  of  law  illustrated  by  them  have  their  origin  in  inter- 
national law,  these  cases  may  well  be  regarded  as  having  persua- 
sive authority  in  our  own  courts  ;  cases  involving,  for  instance, 
the  limits  of  national  jurisdiction,  the  validity  of  a  foreign 
marriage,  and  the  existence  generally  of  foreign-acquired 
rights.  On  such  questions  the  views  of  foreign  courts  should 
be  carefully  considered.  It  is  unnecessary  to  point  out  to  one 
familiar  with  the  principles  of  the  Common  Law  that  greater 
weight  should  be  given  to  the  opinions  of  foreign  courts,  delivered 
in  the  course  of  actual  litigation,  than  to  the  academical  specula- 
tions of  even  the  ablest  authors,  when  not  based  on  the  authority 
of  decided  cases.  On  such  questions  as  the  effect,  accord- 
ing to  our  own  law,  of  the  existence  of  a  foreign-acquired  right, 
where  the  problem,  as  has  been  pointed  out,  is  one  of  purely 
municipal  law,  the  views  of  foreign  courts,  administering  a  differ- 
ent system  of  law,  are  of  absolutely  no  weiglit  as  authority. 
Where  decisions  of  this  nature  have  been  included,  the  purpose 
has  been  to  illustrate  and  emphasize  the  difference  between  the 
doctrines  prevailing  in  the  modern  civil  law  and  in  our  own  law. 
The  need  of  studying  this  difference  has  been  sliown  by  recent 
cases,  notably  the  case  of  Hilton  v.  Guyot. 

Most  of  these  cases  are  here  printed  as  they  were  given  in 
Clunet's  "  Journal  du  Droit  International  Privet  not  being  re- 
ported in  any  official  series  accessible  to  me.  For  the  translation 
of  the  cases  I  must  take  the  responsibility.  In  the  French  deci- 
sions and  others  reported  in  the  French  form  (for  instance,  the 
Belgian  and  Egyptian)  I  have  done  more  than  translate.  The 
report  as  published  does  not  ordinarily  contain  the  opinion  of  the 
court,  but  merely  the  judgment,  which,  however,  includes  a  full 
hilt  formal  rocital  of  the  facts  and  reasons  on  which  the  judgment 
is  based.  1  have  so  changed  the  form  of  statement  (without  the 
slightest  change  otherwise)  as  to  throw  the  judgment  into  the 


PREFACE.  Vll 

form  of  an  opinion.  This  has  been  done  by  omitting  the  formal 
commencement  of  each  recital.  I  could  not  defend  such  a  prac- 
tice if  the  primary  object  uf  this  collection  were  not  in  my  opinion 
tliereby  furthered. 

The  cases  cited  in  the  notes  by  no  means  exhaust  the  authori- 
ties. The  purpose  has  been  to  include  in  the  notes  only  a  suffi- 
cient number  of  well-considered  cases  to  show  the  actual  state  of 
authority  on  each  question. 

I  have  not  always  indicated  the  omission  of  the  reporter's  state- 
ment of  facts,  where  sufficient  facts  appeared  in  the  opinion,  or  of 
the  arguments  of  counsel.  All  other  deviations  from  the  original 
report  have  been  indicated. 

J.  H.  B. 


TABLE   OF   CONTENTS 


Preface      .    . 
Table  of  Cases 


Page 


PART  I. 
JURISDICTION. 

CHAPTER  I. 
LAW. 

Section  I.  The  Extent  of  Legislative  Power 1 

Section  II.  The  Origin  and  Change  of  Law 65 

Section  III.  Concurrent  Legislative  Jurisdiction 85 

Section  IV.  The  Nature  of  Foreign  Law 1^- 

Section  V.  Comity 

CHAPTER  IL 
JURISDICTIOX  OVER  PERSONS  AND  THINGS. 

Section  I.       Domicile 145 

Section  IL     Taxation 220 

Section  III.   Temi'orarv  Presence 29;J 


CHAPTER  HI. 
JURISDICTION  OF   COURTS. 

Section  T.      Jurisdiction  in  Rem •^'^2 

Seciiox  ir.     Personal  Jurisdiction •5-'"5 

Section  HI.    Jikisdiction  Qitasi  in  Rem ^^^l 

Section-   FV.    .Irici-DHTioN   rou   Divoisck             . '-'l 


TABLE    OF   CONTENTS, 

PART    IL 
REMEDIES. 


CHAPTER  IV. 

Pack 

Right  of  Action 497 


CHAPTER  V. 
Procedure 527 


TABLE   OF    CASES. 


[This  table  contains  all  cases  in  the  text,  and  all  the  American,  British  and  Colonial  cases  cited  by 
the  editor  in  his  notes.     Cases  in  the  text  are  printed  in  small  capitals.  ] 


Page 

A.  B.  &  Co..  In  re  3r)3 

Abd-ul-Messih  v.  Farra  165 

Abingtox  v.  North  Bridgewateb  177 

Aekerson  r.  E.  R.  R.  504 

Adams  Express  Co.  r.  Ohio  243 

Adamson,  Copin  v.  348 

Advocate-General,  Thompson  v.  285 

AnVOCATE-GEXERAL   OF    BeXGAL   V. 

Raxee  Surxomoye  Dossee  67 
Airhart  r.  Massieu  66 
Alden,  Harden  v.  452 
Alderson,  Freeman  v.  390 
Alexander  v.  Tolleston  Club  372 
Allen  V.  Thomason  158.  215 
Alley  V.  Caspari  340 
Alliance  Bank  v.  Carey  540 
Alston  r.  Newcomer  183 
Anderson  r.  Anderson  191,  216 
Axdersox,  Reg.  r.  51 
Andrews  r.  Herriott  530 
Anglo-American  Tel.  Co.,  Di- 
rect U.  S.  Cable  Co.  v.  37 
Anon.  510 
Armington.  S.  r.  453 
Armstrong,  Reg.  v.  53 
Armytage  r.  Armytage  439 
Arndt  v.  Arndt  390 
Arxdt  v.  Griggs  308 
Astley  V.  Capron  154 
Atherton  v.  Atherton  459 
Attorney-General  r.  Campbell  285 
V.  Hope  285 
Attorney-General  v.  Pottinger  173 
Attornev(ieneral,  Shaw  v.  438 
Sudelev  v.  285 
Wallace  v.  285 
Atwater  v.  Townsend  527,  540 
Augu.sta,  Porterfield  v.  191 
Avery,  Brinley  v.  506 
Ayeb  v.  Tilden  651 

B. 

Bneliclor.  Standard  Oil  Co.  v.  223 

Bain  v.  Whitehaven,  &c.  Ry.  548 

Baker,  Kline  r.  134 

P.  r.  453 

Balasubramanian.  BarifraniHami  v.  365 

Balcom,  First  Nat.   I'.iiiik  v.  158 

Baldwin.  .\Iiin.l:iy  r.  216 

Balk,  Hakrls  r.  427 


Ballinger  r.  Lautier  183 

Ballister  r.  Hamilton  551 

Baltimore.  Lord.  Penn  v.  372 

Baltimore  &  O.  R.  R.  r.  Glenn  219 

Bander.  Bradley  r.  228 

Bangarusami  r.  Balasubramanian  305 

Bangor  r.  Readfield  215 

Parsons  r.  184 

Bangs  r.  Brewster  190 

Bank.  Brunswick  Terminal  Co.   i\  541 

Bank  of  Augusta  v.  Earle  143 

Bank  of  Australasia  v.  Harding  350 

V.  Nias  350 

Bank  of  U.  S.  r.  Donnally  540 

Barbour  r.  Barbour  212 

Barnes.  Frothingham  r.  338 

Barnhill.  M.  &  O.  R.  R.  r.  423 

Barron.  Mineral  Point  R.  R.  v.  531 

Barton  r.  Barton  210 

Bassett.  Hallet  v.  199 

Bates  r.  Ry.  403 

Beard  v.  Beard  324 

Beabo,  Le  Roy  i'.  529 

Beattie.  Johnson  ?'.  199 

Beedy,  McViear  v.  390 

Belchertown.  Cumminqton  v.  461 

Belgenlam).  The  302 

Bell  r.  Kennedy  145 

Benaiad,  Hamida  r.  546 
Bengal,  Adv. -Gen.  of.   v.  Ranee 

SuRNOMOYE  Dossee  67 
Bcntlev.  S.  V.                                 229.  257 

BcKhtoJdt.  Chatfield  r.  285 
Bkkgner  &  Engel  Brewing  Co.  r. 

Drkyms  218 

Bethany.  Oxford   r.  216 

Bi,.^cKSTONE  r.  Miller  258 

Hlain.  /Jx  parte  351 
Blaine  r.  Colonial  Marine  Ins.  Co.  427 

Blankari)  r.  Galdy  65 

Bleeker.  Swedish-.Amer.   Bank  r.  412 

lioard  of  Assessors,  Detroit  v.  235 

Hoggs,  Weaver  r.  3(t4 

[{..iKhiriUif,  Walson   r.  215 

i<<K)tiii)ay  r.  Wiseasset  190 

Mokland  r.  lioHTON  202 

Boston,  Borland  v.  202 

Bos((m.  Dwight  v.  228 

Otis  r.  155 

S.ars  r.  199 

'rimriidik.-   r.  1S4 

Boston,  \r.  Co..  Tillinghast  r.  333 


XIV 


TABLE    OF   CASES. 


Page 

Freeman,  Burdick  v. 

514 

Fremont,  Gibbs  v. 

551 

Frothing-liam  r.  Barnes 

338 

Frothingham  v.  Shaw 

282 

Frye's  Election 

177 

Furtick,  Nat.  Bank  o. 

412 

G. 

Galdy,  Blankard  v. 

65 

Galitzin.  Mattiiaei  v. 

504 

Gardiner  v.  Farmington 

216 

Gardner  v.  Ogden 

237 

Gardner  v.  Thomas 

510 

Gartner,  Cofrode  v. 

514 

Geoghegan,  Doucet  v. 

200 

German  West  African  Co.,  Ein- 

WOLD    V. 

423 

Germania  F.  I.  Co.  v.  Francis 

219 

Getchell.  Sanders  v. 

177 

Gibbs  r.  Fremont 

551 

Gibbs  r.  Howard 

532 

Gibson  r.  Burgess 

373 

GiLMAN   r.  GiLMAN 

184 

GiRARD   C.  TRAMONTANO 

367 

Glenn  v.  Marbury 

529 

B.  &  0.  R.  R.  V. 

219 

Goodwin,  Easterly  v. 

199 

Gordon,  Carrier  v. 

223 

Howell   r. 

324 

Gore,  Harvard  College  v.          158 

189 

Grant  )\  Dalliber 

210 

(ireasley.  Cloud  v. 

372 

Green  r.  Green 

438 

Greene  r.  Greene                          199 

.  212 

V.  Windham                          191 

,  212 

Griggs,  Arndt  i\ 

308 

Grizzard,  Hannon  v. 

200 

Grothaus,  Marheineke  v. 

216 

Groveb  &  Baker  Sewing  Machine 

Co.  r.  Radcliffe 

354 

Guerrant  ?-.  Fowler 

372 

Guier  r.  O'Daniel 

155 

Guy,  Perkins  v. 

540 

GuYOT,  Hilton  v. 

144 

H. 

Hackettstown  Bank  v.  Mitchell 

212 

Haddock  r.  Haddock 

466 

Hager.  Cook  v. 

219 

Haggart  r.  Morgan 

182 

Haight,  S.  r. 

222 

Haines,  Elsasser  v. 

364 

Williams  v. 

530 

Hairston  r.  Hairston 

191 

Hall  r.  Fayetteville 

228 

Hall.  Caxipbell  v. 

54 

Hallet  V.  Bassett 

199 

Hamtda  r.  Benaiad 

546 

Hamilton  ?'.  Dallas 

174 

Hamilton  v.  Schoentberger 

530 

Hamilton.  Ballister  r. 

551 

Hammond,  Port  Roval  R.  R.  v. 

373 

Page 

Hanberry  ?;.  Hanberry  211,  452 

Hannon  r.  Grizzard  200 

Hanson,  Rand  v.  324 

Harden  ;;.  Alden  452 

Hardesty  v.  Fleming  226 
Harding,  Bank  of  Australasia  v.      350 

Hardy  )•.  De  I^on  210 

Habral  v.  Harral  200 

Harris   v.  Balk  427 

Harris  r.  Harris  453 

Harrisburg,  the  5^0 

Harrison  v.  Harrison  454 

Cross  V.  67 

Hart  L\  Horn  191 

Harteau  v.  Harteau  211,  452 

Hartford   (7.  Champion  154 

Harvard  College  v.  Gore  158,  189 

Harvey,  Mooar  v.  174,  200 

Ha  skins,  Holyoke  v.  216 

Haven  r.  Foster  132 
Hays  r.  Pacific  Mail  S.  S.  Co.     220 

Headley,  Davis  v.  373 

Heidelback,  Ex  parte  551 

Henderson  v.  Staniford  337 

Henry  r.  Sargent  504 

Hernandez,  Underbill  v.  63 

Herriott,  Andrews  v.  530 

Herron  r.  Keeran  257 

Hickok,  Schwinger  v.  325 

Hicks  V.  Skinner  177 

Hiestand  i\  Kuns  216 

Hilton  v.  Guyot  144 

Hinds  V.  Hinds  211 
Hoadley  v.  Northern  Tkansp.  Co.  547 

Hollis,  Wheeler  v.  216 

Hoi  man,  Watkins  v.  373 

Holyoke  v.  Haskins  216 

Home  Ins.  Co.,  P.  r,  257 

Hood  V.  S.  454 

Hooper,  Felch  v.  317 

Hope,  A.  G.  V.  285 

Horn,  Hart  i\  191 

Home  V.  Home  184 

Howard  v.  Ingersoll  510 

Howard,  Gibbs  v.  532 

Howell  V.  Gordon  324 

Cadwalader  r.  199 
Hoyt  r.  Commissioners  of  Taxes  223 

Hubbell  r.  Hubbell  452 
Hudson,  Perm.  B.  &  1.  Assoc  v.    364 

Hull.  Owings  v.  135 

Humphrey  v.  Humphrey  438 

Hunt  V.  Hunt  211,  338 

Hunter,  Carson  v.  540 

Hurlbut,  Renieb  v.  408 


Imlay  r.  Ellefsen 
Ingersoll,  Howard  v. 
International    L.   Ins. 

tine  r. 
Irbv  r.  Wilson 


Sec,   Mar- 


527 
510 

219 
452 


TABLE  OF  CASES. 


XV 


Jack.  Walker  v. 

Jackson  r\  Polk 

Jackson,  Mkxicax  Nat.  R.  R.  r. 

Jackson,  jMonrof  r. 

James,  School  Directors  v.       215 

Jardine.  Chappell  v. 

Jett'erson,  In  re 

r.  Washington 
Jemisox,  Tow.xsExi)  r. 
Johnson  ;;.  C.  &  N.  W.  Ry. 

1-.  Debary-Baya  iM.  Line 

V.  Kimbro 

V.  Smitli 
Johnson,  Fitzsimmons  v. 

Putnam  r. 
Johnstone  v.  Beattie 
Jones  u.  Jones 

V.  Spencer 
Jopp  V.  Wood 
Judge,  S.  V. 

Judges   of   Court   of   Registra- 
tion, Tyler  r. 
Judkins  v.  Reed 


Keeran,  Herron  r. 

Kelley,  McConnell  r. 

Kellogg  V.  Winnebago  County 

Kelly,  Crapo  r. 

Kennedy  v.  Ryall 

Kennedy,  Bell  r. 

Kentucky.  Union  Transit  Co.  r, 

Ketchum  v.  Buckley 

Keyn.  Reg.  r. 

Kimbro.  Jolinson  r. 

KixxER,  Fir.st  Nat.  Bank  v. 

Kirkland  r.  Whatel<'y 

Klixe  ?'.  Bakek 

Kxigiits,  Roberts  r. 

Kopclke  r.  Kojielke 

Korte.  Sturgeon  ;■. 

KowALSKi  r.  Mocaluvo 

Krone  v.  Cooper 

Kuns,  Hiestand  v. 


Labatt  v.  Smith 

Laird  v.  R.  R. 

Lake  S.  &  M.  S.  Ry..  Drake  v. 

Lamar  v.  Malioiiy 

Lamar  r.  Muou 

Lang,  Wyetli  H.  &  .M.  O.  Co.  r. 

LatluDM,  Mow  |-y  r. 

I.uutier,  Balliiigcr  r. 

Law,     Coiiij).      (Jen.     Traiis;i(l:iii 

ti(|ue  V. 
Le  .Mesurikr  r.  Le  .Mesurier 
Leonard  r.  N(,'W  Bedford 
J-E  Rov  r.  Beard 
Lesley.  Reg.  r. 
Levy  V.  Levy 
Com.  r. 


Pajje 
257 
216 
52.5 
21(1 
216 
77 
257 
182 
53.3 
548 
222 
3  7 .3 
183 
358 
174 
1!)9 
454 
3!)0 
109 
200 

317 
182 


257 
184 
155 

51 
215 
145 
202 

82 

1 

373 

76 
216 
134 
512 
552 
210 
.526 
183 
210 


540 
510 
532 
20!» 
212 
423 
216 
183 

345 
426 
226 
52!  > 
6.3 
52!) 
373 


Page 

Lewis,  Succession  of 

216 

Levland,  Comber  r. 

33.5 

Likens.  Clark  ;•. 

183 

Lindsfelt.  St.  Sure  v. 

454 

Linke  r.  \'an  Aerde 

465 

Linnaeus,  Brewer  c. 

191 

200 

Lippman.  Don  r. 

540 

Lister  r.  Wriglit 

504 

Litowieh  v.  Litowich 

454 

Little  r.  Chicago,  S. 

P. 

M.  &  0. 

Ry. 

515 

Littlefield  r.  Brooks 

20!t 

Livermore.  Fayette  /■. 

1!»1 

Loaiza  r.  Superior  Court 

317 

Lodge  V.  Plielps 

528 

Long  r.  Ryan 

184 

Longley.  Robinson  v. 

223 

Lopez,  Reg.  r. 

53 

Lord.  IMoorhouse  r. 

190 

Louisville  r.  Slierley 

21(i 

Louisville  &  N.  R.  R. 

V. 

Nash 

412 

Lowell  r.  Newport 

216 

Lowtlier.  Metcalf  r. 

215 

Lubec  V.  Eastport 

216 

Ludlow  r.  Szold 

183 

Ludlow.  Wilbraiiam 

V. 

189 

Ljmcli,  Brown  v. 

215 

Warren  v. 

540 

Lynde  t>.  Columbus,  C. 

&  I.  C.  Ry. 

374 

M. 

^Iatter  of  Cooley  286 
IMcConnell  r.  Kelley  184 
McCormiek  r.  R.  R.  358 
Eliot  r.  390 
McCrory.  McLauglilin  v.  317 
McDonald  r.  Mai.lory  46 
McDougall.  I»utnam  v.  400 
McEwen  r.  Zimmer  333 
MeCee  r.  Sweeney  372 
McCJuiness,  Tyson  v.  510 
McKeen  v.  County  of  Northamp- 
ton 227 
McKennon  r.  Wixx  83 
Maelaren,  Carron  Iron  Co.  v.  219 
McLauglilin  r.  MeCrorv  317 
M(\icar  r.  Beedv  "  3!>0 
Maddox  r.  S.  *  216 
Madrazo  r.  Willes  4(i 
Maguire  r.  Maguire  21 1 
Mahony.  Lamar  r.  20!' 
Maiir  r.  XoHWK'ii  I'NioN  F.  1.  Soc.  403 
.Malloky,  .McDonald  r.  4(> 
Maxciiesteu.Com.  c.  2!t 
.M.nin  r.  ClarU  ISl 
Mainille,  ( 'ollins  v.  510 
Marbury.  (ilenii  r.  52!* 
Mardroi's.  Farag  p.  85 
Marlieineke  r.  (Jrodiaus  216 
Miirrctt.  / II  ir  1  55 
.M:n-.li:ill.  Wilkitis  r.  15J 
.\biiliiic  /.  Iii(crii;it.  L.  Ins.  Soc.  :'•'» 
.NLison  r.  Warner  504 


XVIU 


TABLE    OF   CASES. 


State  V.  Bentley  229, 

V.  Dayton 

V.  De'Casinova 

V.  Dennis 

V.  Haiglit 

V.  Judge 

V.  Ross 

Dennis  v. 

Hood  V. 

Maddox  v. 

Pea  roe  i\ 

Van  Fossen  v. 
State  Nat.  Bank,  St.  Nicholas 

Bank  r. 
State     Tax     on     Foreign-Held 

Bonds 
Steers,  Snccession  of 
Stempel,  New  Orleans  v. 
Stevens  r.  Fisk 
Stockton  V.  Staples 
Stockton.    Sea    Grove    B.    &    L. 

Assoc.  'V. 
Stoneman  v.  Erie  Ry. 
Strange,  Carpenter  v. 
Stratton  r.  Brigham 
Sturgeon  r.  Korte 
Sturm,  C.  R.  I.  &  P.  Ry-  v.      317, 
Sudeley  v.  A.  G. 
Superior  Court,  Loaiza  v. 
Sutherland  v.  Second  Nat.  Bank 
Swedish-American  Bank  v.  Bleeker 
Sweeney,  McGee  f. 
Swift  r.  Philadelphia  &  R.  R.  R. 
r.  Tyson 
In  re  Estate  of 
Szold,  Ludlow  V. 


Page 
•257 
1!)() 
210 
200 
222 
200 
226 
177 
454 
216 
191 
454 

142 

229 
158 
252 
452 

184 

542 
529 
373 
183 
210 
532 
285 
317 
401 
412 
372 
116 
95 
277 
183 


T. 

Taft  V.  Ward 

Talmadge  v.  Talmadge 

Tappan  r.  [Merchants'  Nat.  Bank 

Taylor,  Woodruff  r. 

Teel  'V.  Yost 

Thelau  i'.  Thelau 

Thomas,  Gardner  v. 

Thomas,  Watts  v. 

Thomason,  Allen  t'.  158 

Thompson  v.  Adv.-Gen. 

V.  Cowell 

B.  &  M.  R.  R.  V. 

Fireman's  Ins.  Co.  v. 
Thompson.  Turner  r. 
Thompson  Oil  Co.,  Noble  v>. 
Thorndike  v.  Boston 
Thornton,  Western  R.  R.  v. 
Tlirasher  r.  Everhart 
Tilden,  Ayer  v. 
Tillinghast  -v.  Boston,  &c.  Co. 
Tirveillot  r.  Tirveillot 
Todesco  r.  Dumont 
Tolleston  Club,  Alexander  v. 
Tootal's  Trusts,  In  re 
TOWNSEND  r.  Jemison 


529 

155  : 

235  ' 

394 

358 

454 

510 

504 

215 

285 

340 

532 

345 

460 

403 

184 

403 

530 

551 

333 

495 

434 

372 

159 

533 


Townsend,  Atwater  v.  527, 

Trammell  v.  Trammell 
Tramontano,  Girard  v. 
Trescott,  Dennysville  v. 
Turner  v.  Thompson 
Tyler  v.  Judges  of  Court  of  Reg- 
istration 
Tj'son  V.  McGuiness 
Tyson,  Swift  v. 

U. 

Udny  v.  Udny 

Underbill  v.  Hermandez 

Union  Transit  Co.  v.  Kentucky 

U.  S.  V.  Perot 

U.  S.,  Desmare  v. 

Mitchell  r. 
Upton  1-.  Northbridge 


V. 


Van  Aerde,  Linke  v. 
Vance,  In  re 
Vanderpoel  v.  D'Hanlon 
Vandeviere,  Vanguilbert  v. 
Van  Fossen  r.  S. 
Vanguilbert  v.  Vandeviere 
Van  Heyden  r.  Salvage 
Van  Oppen,  Newby  v. 
Van  Vlissengen,  Caldwell  v. 
Vaughan,  Reg.  v. 
Venable  r.  Paulding 
Verelst,  Rafael  r. 
ViANNA,  De  la  Vega  v. 
Vreeland  v.  Vreeland  < 

W. 

W's  INIarriage,  In  re 
Wakeman,  Otis  r. 
Walden  v.  Canfield 
Walker  v.  Jack 

Roberts  v. 
Wallace  v.  A.  G. 
Ward,  Taft  t\ 
Warner,  ISIason  v. 

Wood  1-. 
Warren  v.  Lynch 
Warrender  r.  Warrender 
Washington,  Jefferson  r. 
Washington  County,  Bristol  v. 
Watkins  r.  Holman 

V.  Watkins 
Watkinson,  Wood  v. 
Watson  V.  Bondurant 

V.  Brewster 
Watson,  Darrah  v. 
Watts  V.  Thomas 
Watts,  Massie  r. 
Weatherley  v.  Weatherley 
Weaver  r.  Boggs 
Weeks,  Robins  r. 
Wendell,  Whittier  v. 


Pase 
54U 

216 
367 
216 
460 

317 

510 

95 


155 
63 
262 
136 
173 
154 
216 


465 
216 
177 
525 
454 
525 
366 
219 
293 
64 
200 
497 
527 
372 


492 

512 

200 

257 

216 

285 

529 

504 

373 

540 

212 

183 

257 

373 

452 

324 

215 

540 

338 

504 

368 

484 

364 

216 

325 


TABLE  OF  CASES. 


XIX 


•  Page 

Westenholz,  Schibsby  v.  328 

Western  R.  R.  v.  Thornton  403 
Western  Union  Tele.  Vo.  r.  Call 

Pub.  Co.  127 
Western  Union  Tel.  Co.  v.  Clark  .)2.5 
West  Gardiner,  Xortli  Yarmouth  v.   183 

Whateley,  Kirkland  r.  216 

Wheat  V.  P.  C.  &  F.  D.  R.  R.  403 

Wheeler  v.  Burrow  215 

V.  Hoi  lis  216 

White  r.  White                   212,  237,  452 

Whitehaven,  &e.  Ry.,  Bain  r.  549 

Whittier  v.  Wendell  325 

WiLBBAHAM    V.   LUDLOW  IS!) 

WiLDENHUs's  Case  24 

Wilhelm  v.  Francis  427 

WiLHELM  V.  Wilhelm  491 

Wilkins  v.  Marshall  154 

Willes,  Madrazo  t\  40 

Williams  v.  Dormer  212 

V.  Haines  530 

Williams  r.  Roxbuky  183 

Williamstown.  Bulkley  v.  209 

Williford,  Burgett  v.  540 

WMlson,  Cheever  v.  211,  452 

Irby  V.  452 

Windham,  Greene  v.  191,  212 

Winkley  v.  Newton  227 


Page 

Winn,  McKennon  r.  83 

Winnebago  County,  Kelly  v,  155 

Winshij)  r.  Winsiiip  454 

Wiscassot,   Hoothhay  v.  190 

Wood  r.  Fitzgerald  200 

V.  Roeder  1S3 

V.  Warner  373 

V.  Watkinson  324 

t\Wood  216 

Jopp  r.  199 

Woodruff  r.  Taylor  394 

Wright  r.  Bovnton  358 

Lister  //  504 

Wightman,  Potinger  v.  215 

WuRTZ.  Dri'UY  r.  191 

Wyeth  H.  &  M.  O.  Co.  v.  Lang         423 

Y. 

Yelverton  r.  Yelverton  211 

Yost.  Teel  r.  35S 

Young  r.  Dreyfus  379 

V.  POLLAK  209 

z. 

Zimmer,  McEwen  v.  333 


CASES  ON  THE  CONFTJCT  OF  LAWS, 


PART   I. 
JURISDICTION. 


CHAPTER   I. 

L  A  W. 


SECTION    I. 

THE    EXTENT   OF    LEGISLATIVE    POWER. 


REGINA  V.   KEYN. 
Crown  Case  Reserved.     1876. 

[Reported  2  Ex.  D.  63 ,  i3  Cox  C.  C.  403.] 

CocKBURN,  C.  J.  The  defendant  has  been  convicted  of  the  offence 
of  manslaughter  on  the  high  seas,  on  a  trial  had  at  the  Central  Crim- 
inal Court,  under  the  statute  4  &  5  Wra^  IV.,  c.  3G,  s.  22,  which 
empowers  the  judges  sitting  there  to  hear  and  determine  offences 
'•committed  on  the  high  seas  and  other  places  within  the  jurisdiction 
of  the  Admiralt}-  of  England."  The  facts  were  admittedly  such  as  to 
warrant  the  conviction,  if  there  was  jurisdiction  to  try  the  defendant 
as  amenable  to  English  law.  Being  in  command  of  a  steamship,  the 
"  Franconia,"  and  having  occasion  to  pass  the  "  Strathclyde,"  a  Brit- 
ish ship,  the  defendant  brought  his  ship  unnecessarily  close  to  the 
latter,  and  then,  by  negligence  in  steering,  ran  into  the  "  Strathclyde" 
and  broke  a  hole  in  her,  in  consequence  of  which  she  filled  with 
water  and  sank,  when  the  deceased,  whose  death  the  accused  is  charged 
with  having  occasioned,  being  on  board  the  "  Strathclyde,"  was 
drowned. 

That  the  negligence  of  which  the  accused  was  thus  guilty,  having 
resulted  in  the  death  of  the  deceased,  amounts  according  to  English 
law  to  manslaughter  can  admit  of  no  doubt.  The  question  is,  whether 
the  accused  is  amenable  to  our  law,  and  whether  there  was  jurisdic- 
tion to  try  him? 

Tiie  legality  of  tlie  conviction  is  contested,  on  the  ground  that  the 
accused  is  a  foreigner  ;  that  the  "  Franconia,"  the  ship  he  commanded, 
was  a  foreign  vessel,  sailing  from  a  foreign  port,  bound  on  a  foreign 
voyage ;  that  the   alleged    offence   was   committed  on   the  high  seas. 

^  See  Rog.  V.  L(jj)l/.,  7  Cox  C.  C  4(1  ;   Koj^.  v.  Ariiistroug,  1.1  Cux  C.  C.  184.—  Ed 

1 


2  REGINA   V.    KEYN.  [CHAP.    I. 

Under  these  circumstances,  it  is  contended  that  the  accused,  though  he 
may  be  amenable  to  the  law  of  his  own  country,  is  not  capable  of  being 
tried  and  punished  by  the  law  of  England. 

The  facts  on  which  this  defence  is  based  are  not  capable  of  being 
disputed  ;  but  a  twofold  answer  is  given  on  the  part  of  the  prosecu- 
tion : —  1st.  That,  although  the  occurrence  on  which  the  charge  is 
founded  took  place  on  the  high  seas  in  this  sense,  that  the  [)lace  in 
which  it  happened  was  not  within  the  body  of  a  county,  it  occurred 
within  three  miles  of  the  English  coast ;  that,  by  the  law  of  nations, 
the  sea,  for  a  space  of  three  miles  from  the  coast,  is  part  of  the  ter- 
ritory of  the  country  to  which  the  coast  belongs  ;  that,  consequently, 
the  "  Franconia,"  at  the  time  the  offence  was  committed,  was  in 
English  waters,  and  those  on  board  were  therefore  subject  to  English 
law.  2ndly.  That,  although  the  negligence  of  which  the  accused  was 
guilty  occurred  on  board  a  foreign  vessel,  the  death  occasioned  by  such 
negligence  took  place  on  board  a  British  vessel ;  and  that,  as  a  British 
vessel  is  in  point  of  law  to  be  considered  British  territory,  the  offence 
having  been  consummated  by  the  death  of  the  deceased  in  a  British 
ship,  must  be  considered  as  having  been  committed  on  British  territory. 

I  reserve  for  future  consideration  the  arguments  thus  advanced  on 
the  part  of  the  Crown,  and  proceed,  in  the  first  instance,  to  consider 
the  general  question,  —  how  far,  independently  of  them,  the  accused, 
having  been  at  the  time  the  offence  was  committed  a  foreign  subject, 
in  a  foreign  ship,  on  a  foreign  vo^'age,  on  the  high  seas,  is  amenable 
to  the  law  of  England. 

Now,  no  proposition  of  law  can  be  more  incontestable  or  more  uni- 
versall}'  admitted  than  that,  according  to  the  general  law  of  nations,  a 
foreigner,  though  criminally  responsible  to  the  law  of  a  nation  not  his 
own  for  acts  done  by  him  while  within  the  limits  of  its  territor}',  cannot 
be  made  responsible  to  its  law  for  acts  done  beyond  such  limits :  — 

"  Leges  CLijusque  imperii,"  says  Huber  de  Conflictu  Legum,  citing 
Dig.  de  jurisdictione,  1.  ult.,  "  vim  habent  intra  terminos  ejusdem  rei- 
publica?,  omnesque  ei  subjectos  obligant,  nee  ultra."  '•  Extra  territo- 
rium  jus  dicenti  impune  non  paretur"  is  an  old  and  well-established 
maxim.  "  No  sovereignty,"  saj's  Story  (Conflict  of  Laws,  s.  539), 
"  can  extend  its  process  beyond  its  own  territorial  limits,  to  subject 
either  persons  or  property  to  its  judicial  decisions.  Every  exertion  of 
authority  of  this  sort  beyond  this  limit  is  a  mere  nullity,  and  incap- 
able of  l)inding  such  persons  or  property  in  any  other  tribunals."  "  The 
power  of  this  country,"  says  Dr.  Lushington  in  the  case  of  The  Zoll- 
verein,  1  Sw.  Adm.  96,  "  is  to  legislate  for  its  subjects  all  the  world 
over,  and  as  to  foreigners  within  its  jurisdiction,  but  no  further." 

This  rule  must,  however,  be  taken  subject  to  this  qualification,  namel}', 
that  if  the  legislature  of  a  particular  country  should  think  fit  by  express 
enactment  to  render  foreigners  snbjert  to  its  law  with  reference  to 
cffences  committed  beyond  the  limits  of  its  territory,  it  would  be  incura- 


SECT.    I.J  KEGINA    V.    KEYN.  3 

bent  on  the  courts  of  such  countr}'  to  give  effect  to  such  enactment, 
leaving  it  to  the  state  to  settle  the  question  of  international  law  with 
the  governments  of  other  nations.  The  question  of  express  legislation 
will  be  dealt  with  hereafter.  For  the  present  I  am  dealing  with  the 
subject  with  reference  to  the  general  law  alone. 

To  the  general  rule  to  which  I  have  referred  there  is  one  excep- 
tion,—  that  of  a  foreigner  on  board  the  ship  of  another  nation.  But 
the  exception  is  apparent  rather  than  real ;  for  by  tiie  received  law  of 
every  nation  a  ship  on  the  high  seas  carries  its  nationalit}'  and  the  law 
of  its  own  nation  with  it,  and  in  this  respect  has  been  likened  to  a 
floating  portion  of  the  national  territor}-.  All  on  board,  therefore, 
whether  subjects  or  foreigners,  are  bound  to  obey  the  law  of  the  coun- 
try to  which  the  ship  belongs,  as  though  the}'  were  actually  on  its  ter- 
ritory on  land,  and  are  liable  to  the  penalties  of  that  law  for  an}'  offence 
committed  against  it. 

But  they  are  liable  to  that  law  alone.  On  board  a  foreign  ship  ou 
the  high  seas,  the  foreigner  is  liable  to  the  law  of  the  foreign  ship  onl}'. 
It  is  onh'  when  a  foreign  ship  comes  into  the  ports  or  waters  of  another 
state  that  the  ship  and  those  on  board  become  subject  to  the  local  law. 
These  are  the  established  rules  of  the  law  of  nations.  They  have  been 
adopted  into  our  own  municipal  law,  and  must  be  taken  to  form  part 
of  it. 

According  to  the  general  law,  therefore,  a  foreigner  who  is  not  resid- 
ing permanentl}-  or  temporarily  in  British  territorj',  or  on  board  a 
British  ship,  cannot  be  held  responsible  for  an  infraction  of  the  law  of 
this  country.  Unless,  therefore,  the  accused,  Ke3-n,  at  the  time  the 
offence  of  which  he  has  been  convicted  was  committed,  was  on  British 
territory  or  on  board  a  British  ship,  he  could  not  be  properl}'  brought 
to  trial  under  English  law,  in  the  absence  of  express  legislation.^ 

These  decisions  are  conclusive  in  favor  of  the  accused  in  the  pres- 
ent case,  unless  the  contention,  on  the  part  of  the  Crown,  either  that 
the  place  at  which  the  occurrence,  out  of  which  the  present  inquiry  has 
arisen,  was,  though  on  the  high  seas,  yet  within  British  waters,  by 
reason  of  its  having  been  within  tliree  miles  of  the  English  shore  ;  or 
that,  the  death  of  the  deceased  having  occurred  in  a  British  ship,  the 
offence  must  be  taken  to  have  been  there  committed,  so  as  in  cither 
case  to  give  jin-isdiction  to  the  Admiralt}',  or  the  courts  substituted  for 
it,  shall  prevail.  These  questions  it  becomes,  therefore,  necessary  care- 
fully to  consider. 

On  entering  on  the  first,  it  is  material  to  have  a  clear  conception  of 
what  the  matter  in  controversy  is.  The  jurisdiction  of  the  admiral, 
liowever  largely  asserted  in  theory  in  ancient  times,  being  abandoned 
as  untenal>le,  it  Ijccomes  necessary  for  tlie  counsel  for  tlic  Crown  to 
have  recourse  to  a  doctrine  of  comparatively  modern  growtli.  nMinely, 
that  a  belt  of  sea,  to  a  distance  of  three  miles  from  the  coast,  though 

'  Thf;  loarnod  f'Fiief  .Justico  tliori  oxatniiKMl  tlio  luithoriticM,  wliicli  iti  liis  ojiinion 
deuieil  jurisiJiction  to  the  Admiral  iu  a  case  of  the  proscut  aort.  —  Ku. 


4  REGINA    V.    KEYN.  [CHAP.    I. 

SO  far  a  portion  of  the  high  seas  as  to  be  still  within  the  jurisdiction  of 
the  admiral,  is  part  of  the  territory  of  the  realm,  so  as  to  make  a 
foreigner  in  a  foreign  ship,  within  such  belt,  though  on  a  voyage  to  a 
foreign  port,  subject  to  our  law,  which  it  is  clear  he  would  not  be  on  the 
high  sea  beyond  such  limit.  It  is  necessary  to  keep  the  old  assertion 
of  jurisdiction  and  that  of  to-day  essentially  distinct,  and  it  should  be 
borne  in  mind  that  it  is  because  all  proof  of  the  actual  exercise  of  any 
jurisdiction  by  the  admiral  over  foreigners  in  the  narrow  seas  totally 
fails,  that  it  becomes  necessary  to  give  to  the  three-mile  zone  the  char= 
acter  of  territory  in  order  to  make  good  the  assertion  of  jurisdiction  over 
the  foreigner  therein. 

Now,  it  may  be  asserted  without  fear  of  contradiction  that  the  posi- 
tion that  the  sea  within  a  belt  or  zone  of  three  miles  from  the  shore, 
as  distinguished  from  the  rest  of  the  open  sea,  forms  part  of  the  realm 
or  territory  of  the  Crown  is  a  doctrine  unknown  to  the  ancient  law  of 
England,  and  which  has  never  yet  received  the  sanction  of  an  English 
criminal  court  of  justice.^ 

From  the  review  of  these  authorities  we  arrive  at  the  following  re- 
sults. There  can  be  no  doubt  that  the  suggestion  of  Bynkershoek, 
that  the  sea  surrounding  the  coast  to  the  extent  of  cannon-range  should 
be  treated  as  belonging  to  the  state  owning  the  coast,  has,  with  but  very 
few  exceptions,  been  accepted  and  adopted  by  the  publicists  who  have 
followed  him  during  the  last  two  centuries.  But  it  is  equally  clear  that, 
in  the  practical  application  of  the  rule,  in  respect  of  the  particular  of 
distance,  as  also  in  the  still  more  essential  particular  of  the  character 
and  degree  of  sovereignty  and  dominion  to  be  exercised,  great  difference 
of  opinion  and  uncertainty  have  prevailed,  and  still  continue  to  exist. 

As  regards  distance,  while  the  majority  of  authors  have  adhered  to 
the  three-mile  zone,  others,  like  M.  Ortolan  and  Mr.  Halleck,  applying 
with  greater  consistency  the  principle  on  which  the  whole  doctrine  rests, 
insist  on  extending  the  distance  to  the  modern  range  of  cannon,  —  in 
other  words  doubling  it.  This  difference  of  opinion  may  be  of  little 
practical  importance  in  the  present  instance,  inasmuch  as  the  place  at 
which  the  offence  occurred  was  within  the  lesser  distance  ,■  but  it  is, 
nevertheless,  not  immaterial  as  showing  how  unsettled  this  doctrine  still 
is.  The  question  of  sovereignty,  on  the  other  hand,  is  all-important. 
And  here  we  have  every  shade  of  opinion. 

One  set  of  writers,  as,  for  instance,  M.  Hautefeuille,  ascribe  to  the 
state  territorial  property  and  sovereignty  over  the  three  miles  of  sea, 
to  the  extent  of  the  right  of  excluding  the  ships  of  all  other  nations, 
even  for  the  purpose  of  passage,  —  a  doctrine  flowing  immediately  from 
the  principle  of  territorial  property,  but  which  is  too  monstrous  to  be 
admitted.  Another  set  concede  territorial  property  and  sovereignty, 
but  make  it  subject  to  the  right  of  other  nations  to  use  these  waters  for 
the   purpose  of   navigation.     Others  again,  like  M.  Ortolan  and  M. 

1  The  learned  Chief  Justice  then  examined  the  opinions  of  writers  upon  Interna- 
>-"'— 1  Law  as  to  territorial  jurisdiction  over  the  littoral  seas.  —  Ed. 


SECT.    I.]  KEGIXA    V.    KEYX.  5 

Calvo,  deny  any  right  of  territorial  property,  but  concede  "jurisdic- 
tion ;  "  by  which  I  understand  them  to  mean  the  power  of  api)lying  the 
law,  api)Ucal)le  to  persons  on  the  land,  to  all  wiio  are  within  tlie  territo- 
rial water,  and  the  power  of  legislating  in  respect  of  it,  so  as  to  bind 
every  one  who  comes  within  the  jurisdiction,  whether  subjects  or 
foreigners.  Some,  like  M,  Ortolan,  would  couflne  this  jurisdiction  to 
purposes  of  "  safety  and  police,"  —  b}'  which  I  should  be  disposed  to 
understand  measures  for  the  protection  of  the  territory,  and  for  the 
regulation  of  the  navigation,  and  the  use  of  harbors  and  roadsteads, 
and  the  maintenance  of  order  among  the  shi[)piiig  therein,  rather  than 
the  general  application  of  the  criminal  law. 

Other  authors  —  for  instance,  Mr.  Manning  —  would  restrict  the 
jurisdiction  to  certain  specified  purposes  in  which  the  local  state  has 
an  immediate  interest,  namely,  the  protection  of  its  revenue  and  fish- 
eries, the  exacting  of  harbor  and  light  dues,  and  the  protection  of  its 
coasts  in  time  of  war. 

Some  of  these  authors  —  for  instance,  Professor  Bluntscbli  —  make 
a  most  important  distinction  between  a  commorant  and  a  passing  ship. 
According  to  this  author,  while  the  commorant  ship  is  subject  to  the 
general  law  of  the  local  state,  the  passing  ship  is  liable  to  the  local 
jurisdiction  only  in  matters  of  "  military  and  police  regulations,  made 
for  the  safety  of  the  territoiy  and  population  of  the  coast."  None  of 
these  writers,  it  should  be  noted,  discuss  the  question,  or  go  the  length 
of  asserting  that  a  foreigner  in  a  foreign  ship,  using  the  waters  in 
question  for  the  purpose  of  navigation  solely,  on  its  way  to  another 
country,  is  liable  to  the  criminal  law  of  the  adjoining  country  for  an 
offence  committed  on  board. 

Now,  when  it  is  remembered  that  it  is  mainly  on  the  statements  and 
authority  of  these  writers,  and  to  opinions  founded  upon  them,  that  we 
are  called  upon  to  hold  that  foreigners  on  the  so-called  territorial  sea 
«ie  subject  to  the  general  law  of  this  countiy,  the  discrepancy  of  opin- 
ion which  I  have  been  pointing  out  becomes  verv  material.  Looking 
to  this,  we  may  properly  ask  those  who  contend  for  the  application  of 
the  existing  law  to  the  littoral  sea  independently  of  legislation,  to  tell 
us  the  extent  to  which  we  are  to  go  in  applying  it.  Are  we  to  limit 
it  to  three  miles,  or  to  extend  it  to  six?  Are  we  to  treat  tlie  whole  body 
of  the  criminal  law  as  applicable  to  it,  or  onl}'  so  mucli  as  relates  to 
"  police  and  safety"?  Or  are  we  to  limit  \t,  as  one  of  these  autliors 
proposes,  to  the  protection  of  fisheries  and  customs,  tlie  exacting  of 
harbor  and  light  dues,  and  the  proloction  of  our  coasts  in  time  of 
war?  Which  of  these  writers  are  we  to  follow?  What  is  there  in 
these  conflicting  views  to  guide  us,  in  the  total  absence  of  precedent  or 
legal  sanction,  as  to  the  extent  to  which  we  may  subject  foreigners  to 
our  law?  What  is  there  in  them  which  anlhorizes  us  to  assume  not 
only  that  Parliament  can  of  right  deal  with  the  tlu-ee-mile  zone  as 
forming  part  of  our  territory,  but  also  that,  l)y  the  mere  asscntof  other 
nations,  the  sea  to  this  extent  has  become  so  coinijletcl}'  a  pait  of  our 


6  KEGINA   V.   KEYN.  [cHAP.    I. 

territory  as  to  be  subject,  without  legislation,  to  the  whole  body  of  oui 
existing  law,  civil  and  criminal  ? 

But  it  is  said  that,  although  the  writers  on  international  law  are 
disagreed  on  so  many  essential  points,  they  are  all  agreed  as  to  the 
power  of  a  littoral  state  to  deal  with  the  three-mile  zone  as  subject  to 
its  dominion,  and  that  consequently  we  may  treat  it  as  subject  to  our 
law.  But  this  reasoning  strikes  me  as  unsatisfactory- ;  for  what  does 
this  unanimity  in  the  general  avail  us  when  we  come  to  the  practical 
application  of  the  law  in  the  particular  instance,  if  we  are  left  wholly  in 
the  dark  as  to  the  degree  to  which  the  law  can  be  legitimately  enforced? 
This  unanimity  of  opinion  that  the  littoral  sea  is,  at  all  events  for 
some  purposes,  subject  to  the  dominion  of  the  local  state,  may  go  far  to 
show  that,  by  the  concurrence  of  other  nations,  such  a  state  may  deal 
with  these  waters  as  subject  to  its  legislation.  But  it  wholly  fails  to 
show  that,  in  the  absence  of  such  legislation,  the  ordinary  law  of  the 
local  state  will  extend  over  the  waters  in  question,  —  which  is  the  point 
which  we  have  to  determine. 

Not  altogether  uninfluenced,  perhaps,  by  the  diversity  of  opinion  to 
which  I  have  called  attention,  tlie  argument  in  support  of  the  prosecu- 
tion presents  itself — not  without  some  sacrifice  of  consistency  —  in 
more  than  one  shape.  At  one  time  it  is  asserted  that,  for  the  space  of 
three  miles,  not  only  the  sea  itself,  but  the  bed  on  which  it  rests,  forms 
part  of  the  territory  or  realm  of  the  countr}'  owning  the  coast,  as  though 
it  were  so  much  land ;  so  that  the  right  of  passage  and  anchorage 
might  be  of  right  denied  to  the  ships  of  other  nations.  At  another  time 
it  is  said  that,  while  the  right  is  of  a  territorial  character,  it  is  subject 
to  a  right  of  passage  by  the  ships  of  other  nations.  Sometimes  the 
sovereignty  is  asserted,  not  as  based  on  territorial  right,  but  simply  as 
attaching  to  the  sea,  over  which  it  is  contended  that  the  nation  owning 
the  coast  may  extend  its  law  to  the  foreigner  navigating  within  it. 

To  those  who  assert  that,  to  the  extent  of  three  miles  from  the  coast, 
the  sea  forms  part  of  the  realm  of  England,  the  question  ma}'  well  be 
put,  when  did  it  become  so?  Was  it  so  from  the  beginning?  It  cer- 
tainly was  not  deemed  to  be  so  as  to  a  three-mile  zone,  any  more  than 
as  to  tlie  rest  of  the  high  seas,  at  the  time  the  statutes  of  Richard  II. 
were  passed.  For  in  those  statutes  a  clear  distinction  is  made  between 
the  realm  and  the  sea,  as  also  between  the  bodies  of  counties  and  the 
sea ;  the  jurisdiction  of  the  admiral  being  (subject  to  the  exception 
already  stated  as  to  murder  and  mayhem)  confined  strictl}'  to  the  latter, 
and  its  exercise  "within  the  realm"  prc)hil)ited  in  terms.  The  lan- 
guage of  the  first  of  these  statutes  is  especially  remarkable :  — - 

"  The  admirals  and  their  deputies  shall  not  meddle  from  henceforth 
with  anything  done  vnthin  the  realm  of  England^  hut  only  loith  things 
done  %ipon  the  sea." 

It  is  impossible  not  to  be  struck  by  the  distinction  here  taken  between 
the  realm  of  England  and  the  sea ;  or,  when  the  two  statutes  are  taken 


SECT,    I.]  REGIXA    C.    KEYX.  7 

together,  not  to  see  that  the  term  "realm,"  used  in  the  first  statute, 
and  "  bodies  of  counties,"  the  term  used  in  the  second  statute,  mean 
one  and  the  same  thing.  In  these  statutes  the  jurisdiction  of  the 
admiral  is  restricted  to  the  high  seas,  and,  in  respect  of  murder  and 
mayhem,  to  the  great  rivers  below  the  bridges,  while  whatever  is  within 
the  realm,  in  other  words,  within  the  body  of  a  county,  is  left  within 
the  domain  of  the  common  law.  But  there  is  no  distinction  taken  be- 
tween one  part  of  the  high  sea  and  another.  The  three-mile  zone  is 
no  more  dealt  with  as  witliin  the  realm  tlian  the  seas  at  large.  The 
notion  of  a  three-mile  zone  was  in  those  days  in  the  womb  of  time. 
When  its  origin  is  traced,  it  is  found  to  be  of  comparatively  modern 
growth.  The  first  mention  of  it  by  any  writer,  or  in  anj'  court  of  this 
countiy,  so  far  as  I  am  aware,  was  made  b}-  Lord  Stowell,  with  refer- 
ence to  a  question  of  neutral  rights,  in  the  first  year  of  the  present  cen- 
tury, in  the  case  of  The  Twee  Gebroeders,  8  C.  Kob.  162.  To  this 
hour  it  has  not,  even  in  theory,  yet  settled  into  certainty.  For  centuries 
before  it  was  thought  of,  the  great  landmarks  of  our  judicial  system 
had  been  set  fast  —  the  jurisdiction  of  the  common  law  over  the  land 
and  the  inland  waters  contained  within  it,  forming  together  the  realm 
of  England,  that  of  the  admiral  over  English  vessels  on  the  seas,  the 
common  property  or  highway  of  mankind. 

But  I  am  met  by  authority,  and,  beyond  question,  ancient  authority, 
may  be  found  in  abundance  for  the  assertion  that  the  bed  of  the  sea  is 
part  of  the  realm  of  England,  part  of  the  territorial  possessions  of  the 
Crown.  Coke,  commenting  on  §  439  of  Littleton,  says,  in  explaining 
the  words  "  out  of  the  realm  "  :  — 

"  If  a  man  be  upon  the  sea  of  England,  he  is  within  the  kingdom  or 
realme  of  England,  and  within  the  ligeance  of  the  King  of  England,  as 
of  his  crowne  of  England.  And  yet  cdtwn  mare  is  out  of  the  juris- 
diction of  the  common  law,  and  within  the  jurisdiction  of  the  lord 
admirall." 

So  Lord  Hale,  no  doubt,  in  his  work  De  Jure  Maris,  speaks  of  the 
narrow  seas,  and  the  soil  thereof,  as  "part  of  the  King's  waste, 
demesnes,  and  dominions,  whether  in  the  body  of  a  county  or  not." 
But  this  was  said,  not  with  reference  to  the  theory  of  the  three-mile 
zone,  which  had  not  then  been  thought  of,  but  (following  Selden)  to  the 
wild  notion  of  sovereignty  over  the  whole  of  the  narrow  seas.  This 
pretension  failing,  the  rest  of  the  doctrine,  as  it  seems  to  me,  falls  with 
it.  Moreover,  Male  stops  short  of  saying  that  the  bed  of  the  soa 
forms  part  of  the  realm  of  England,  as  a  portion  of  its  territory.  He 
speaks  of  it  under  tlie  vague  terras  of  "  waste,"  "  demesnes,"  or 
"  dominions."  He  carefully  distinguishes  between  the  parts  of  the  sea 
which  are  within  the  body  of  a  county  and  those  which  arc  not. 

It  is  true  that,  in  his  later  work  on  the  Pleas  of  the  Crown,  LortI 
Ilalo,  speaking  in  the  clmpter  on  Treasons  (vol.  i.  p.  l.')!),  of  wiiat  is  :i 
levN  iiig  of  war  against  the  King  "  witliin  the  realm,''  according  to  llio 


8  KEGIXA    V.    KEYX.  [cHAP.    L 

required  averment  in  an  indictment  for  that  offence,  instances  the 
hostile  invasion  of  the  King's  ships  C'  which,"  he  observes,  "are  so 
many  royal  castles")  ;  and  this,  he  says,  ''  is  a  levying  of  war  within 
the  realm  ;  "  the  reason  he  assigns  being  that  "  the  narrow  seas  are  of 
the  ligeauce  of  the  Crown  of  England,"  for  which  he  cites  the  author- 
ity of  Selden.  Here,  again,  we  have  Lord  Hale  blindly  following 
''  Master  Selden,"  in  asserting  that  the  narrow  seas  owe  allegiance  to 
the  Crown  of  England.  A  hostile  attack  by  a  subject  on  a  ship  of  war 
on  the  narrow  seas  would,  I  need  scarcely  say,  be  a  levying  of  war 
against  the  sovereign,  but  it  could  not  now  be  said  to  be  high  treason  as 
having  been  done  within  the  realm. 

Blackstone  (Comm.  vol.  i.  p.  110)  says  that  "the  main  or  high 
seas  "  (which  he  afterwards  describes  as  beginning  at  low-water  mark) 
"  are  part  of  the  realm  of  England," —  here  Mr.  Stephen,  feeling  that 
his  author  was  going  too  far,  interposes  the  words  "  in  one  sense,"  — 
"  for  thereon,"  adds  Blackstone,  "  our  courts  of  Admiralty  have  juris- 
diction ;  but  they  are  not  subject  to  the  common  law."  This  is,  in- 
deed, singular  reasoning.  Instead  of  saying  that,  because  these  seas 
are  part  of  the  realm  of  England,  the  Courts  of  Admiralty  have  juris- 
diction over  them,  the  writer  reverses  the  position,  and  says,  that 
because  the  Admiralty  has  jurisdiction  these  seas  are  part  of  the  realm, 
—  which  certainly  does  not  follow.  If  it  did,  as  the  jurisdiction  of  the 
Admiralty  extended,  as  regards  British  ships,  wherever  the  sea  rolls, 
the  entire  ocean  might  be  said  to  be  within  the  realm. 

But  to  what,  after  all,  do  these  ancient  authorities  amount?  Of  what 
avail  are  they  towards  establishing  that  the  soil  in  the  three-mile  zone 
is  part  of  the  territorial  domain  of  the  Crown  ?  These  assertions  of 
sovereignty  were  manifestly  based  on  the  doctrine  that  the  narrow  seas 
are  part  of  the  realm  of  England.  But  that  doctrine  is  now  exploded. 
Who  at  this  day  would  venture  to  affirm  that  the  sovereignty  thus 
asserted  in  those  times  now  exists?  What  English  lawyer  is  there 
who  would  not  shrink  from  maintaining — what  foreign  jurist  who 
would  not  den}'  —  what  foreign  government  which  would  not  repel 
such  a  pretension?  I  listened  carefully  to  see  whether  any  such  asser- 
tion would  be  made  ;  but  none  was  made.  No  one  has  gone  the 
length  of  suggesting,  much  less  of  openly  asserting,  that  the  jurisdic- 
tion still  exists.  It  seems  to  me  to  follow  that  when  the  sovereigntj' 
and  jurisdiction  from  which  the  property  in  the  soil  of  the  sea  was  in- 
ferred is  gone,  the  territorial  property*  which  was  suggested  to  be  con- 
sequent upon  it  must  necessaril}'  go  with  it. 

But  we  are  met  here  b}'  a  subtle  and  ingenious  argument.  It  is  said 
that  although  the  doctrine  of  the  criminal  jurisdiction  of  the  admiral 
over  foreigners  on  the  four  seas  has  died  out,  and  can  no  longer  be 
upheld,  3'et,  as  now,  by  the  consent  of  other  nations,  sovereignty  over 
this  territorial  sea  is  conceded  to  us,  the  jurisdiction  formerly  asserted 
may  be  revived  and  made  to  attach  to  the  newly-acquired  domain.  T 
am  unable  to  adopt  this  reasoning.    Ex  concessis,  the  jurisdiction  over 


SECT.    I.l  REGINA    V.    KEYX.  9 

foreigners  in  foreiun  ships  never  really  existed,  at  all  events,  it  has 
long  been  dead  and  buried,  even  the  ghost  of  it  has  been  laid.  lUit  it 
is  evoked  from  its  grave  and  brought  to  life  for  the  purpose  of  apph- 
ing  it  to  a  part  of  the  sea  which  was  included  in  the  whole,  as  to  which 
it  is  now  practically  admitted  that  it  never  existed.  From  the  time  the 
jurisdiction  was  asserted  to  the  time  when  the  pretension  to  it  was 
dropped,  it  was  asserted  over  this  portion  of  the  sea  as  part  of  the 
whole  to  which  the  jurisdiction  was  said  to  extend.  If  it  was  bad  as  to 
the  whole  indiscriminately,  it  was  bad  as  to  every  part  of  the  whole. 
15ut  why  was  it  bad  as  to  the  whole?  Simply  because  the  jurisdiction 
did  not  extend  to  foreigners  in  foreign  ships  on  the  high  seas.  But  the 
waters  in  question  have  always  formed  part  of  the  high  seas.  They 
are  alleged  in  this  indictment  to  be  so  now.  How,  then,  cnn  tlie 
admiral  have  the  jurisdiction  over  them  contended  for  if  he  had  it 
not  before?  There  having  been  no  new  statute  conferring  it,  how  has 
he  acquired  it? 

To  come  back  to  the  subject  of  the  realm,  I  cannot  help  thinking 
that  some  confusion  arises  from  the  term  '*  realm  "  being  used  in  more 
than  one  sense.  Sometimes  it  is  used,  as  in  the  statute  of  Richard  II., 
to  mean  the  land  of  England,  and  the  internal  sea  within  it,  sometimes 
as  meaning  whatever  the  sovereignty  of  the  Crown  of  England  ex- 
tended, or  was  supi)Osed  to  extend,  over. 

When  it  is  used  as  synonymous  with  territory,  I  take  the  true  mean- 
ing of  the  term  "realm  of  England"  to  be  the  territory  to  and  over 
which  the  common  law  of  England  extends  —  in  other  words,  all  that 
is  within  the  body  of  any  county  —  to  the  exclusion  of  the  high  seas, 
which  come  under  a  different  jurisdiction  only  because  they  are  not 
within  any  of  those  territorial  divisions,  into  which,  among  other  things 
for  the  administration  of  the  law,  the  kingdom  is  parcelled  out.  At  all 
events,  I  am  prepared  to  abide  by  the  distinction  taken  in  the  statutes 
of  Richard  II.  between  the  realm  and  the  sea.  For  centuries  our  judi- 
cial system  in  the  administration  of  the  criminal  law  has  been  divided 
into  two  distinct  and  independent  brandies,  the  one  having  jurisdiction 
over  the  land  and  any  sea  considered  to  be  within  the  land  ;  the  other 
over  the  sea  external  to  the  land.  No  concurrent  assent  of  nations, 
that  a  portion  of  what  liefore  was  treated  as  the  high  sea,  and  as  such 
common  to  all  the  world,  shall  now  be  treated  as  the  territory  of  the 
local  state,  can  of  itself,  without  the  autliority  of  Parliament,  convert 
that  which  before  was  in  the  eye  of  the  law  high  sea  into  British  terri- 
tory, and  so  change  the  law,  or  give  to  the  courts  of  this  country,  iiide- 
p(Midentlv  of  legislation,  a  jurisdiction  over  the  foreigner  where  tlii-y 
had  it  not  before.  The  argument  in  support  of  the  contrary  appears 
to  me,  I  must  say,  singularly  inconsistent  with  itself.  According  to  it 
the  littoral  sea  is  made  to  assume  wiiat  I  cannot  help  calling  an  amphib- 
ious character.  Atone  time  it  is  land,  at  anotiier  it  is  water.  Is  it 
desired  to  apply  the  law  of  lli<"  shon;  to  it,  so  as  to  make  the  foreigner 
subject  to  that  law?  —  it  becomes  .so  much  territory.     Do  you  wish  fo 


10  KEGINA   V.    KEYN.  [CHAP.    I. 

keep  it  within  the  jurisdiction  of  the  admiral,  as  you  must  do  to  up- 
hold this  indictment? —  it  is  made  to  resume  its  former  character  as 
part  of  the  high  seas.  Unable  to  follow  this  vacillating  reasoning,  I 
must  add  that,  to  my  mind,  the  contention  that  the  littoVal  sea  forms 
part  of  the  realm  or  territory  of  Great  Britain  is  fatal  to  the  argument 
which  it  is  intended  to  support.  For,  if  the  sea  thus  becomes  part  of 
the  territory,  as  though  it  were  actually  inter  fauces  terrm^  it  seems  to 
follow  that  it  must  become  annexed  to  the  main  land,  and  so  become 
part  of  the  adjoining  county,  in  which  case  there  would  be  an  end  to 
the  Admiralty  jurisdiction.  The  littoral  sea  cannot  be  land  for  one  pur- 
pose and  high  sea  for  another.  Nor  is  anything  gained  by  substituting 
the  term  "  territory  "  for  land.  The  law  of  England  knows  but  of  one 
territory,  —  that  which  is  within  the  body  of  a  county.  All  beyond  it  is 
the  high  sea,  which  is  out  of  the  province  of  English  law  as  applicable 
to  the  shore,  and  to  which  that  law  cannot  be  extended  except  by 
legislation. 

It  does  not  appear  to  me  that  the  argument  for  the  prosecution  is  ad- 
vanced by  reference  to  encroachments  on  the  sea,  in  the  way  of  har- 
bors, piers,  breakwaters,  and  the  like,  even  when  projected  into  the 
open  sea,  or  of  forts  erected  in  it,  as  is  the  case  in  the  Solent.  Where 
the  sea,  or  the  bed  on  which  it  rests,  can  be  physically  occupied  per- 
manently, it  may  be  made  subject  to  occupation  in  the  same  manner  as 
imoccupied  territory.  In  point  of  fact,  such  encroachments  are  gen- 
erally made  for  the  benefit  of  the  navigation  ;  and  are  therefore  read- 
ily acquiesced  in.  Or  they  are  for  the  purposes  of  defence,  and  come 
within  the  principle  that  a  nation  may  do  what  is  necessary  for  the  pro- 
tection of  its  own  territory.  Whether,  if  an  encroachment  on  the  sea 
were  such  as  to  obstruct  the  navigation  to  the  ships  of  other  nations, 
it  would  not  amount  to  a  just  cause  of  complaint,  as  inconsistent  with 
international  rights,  might,  if  the  case  arose,  be  deserving  of  serious 
consideration.  That  such  encroachments  are  occasionally  made  seems 
to  me  to  fall  very  far  short  of  establishing  such  an  exclusive  property 
in  the  littoral  sea  as  that,  in  the  absence  of  legislation,  it  can  be  treated, 
to  all  intents  and  purposes,  as  part  of  the  realm. 

Again,  the  fact,  adverted  to  in  the  course  of  the  discussion,  that  in 
the  west  of  England  mines  have  been  run  out  under  the  bed  of  the  sea 
to  beyond  low-water  mark,  seems  to  me  to  avail  but  little  towards  the 
decision  of  the  question  of  territorial  property  in  the  littoral  sea.  But 
for  the  Act  of  21  &  22  Vict.  c.  109,  to  which  our  attention  has  been 
specially  directed,  I  should  have  thought  the  matter  simple  enough. 
Between  high  and  low  water  mark  the  property  in  the  soil  is  in  the 
Crown,  and  it  is  to  be  assumed  that  it  is  by  grant  or  license  from  the 
Crown,  or  by  prescription,  which  presupposes  a  grant,  tnat  a  mine  is 
carried  beneath  it.  Beyond  low-water  mark  the  bed  of  the  sea  might, 
I  should  have  thought,  be  said  to  be  unappropriated,  and,  if  capable  of 
being  appropriated,  would  become  the  property  of  the  first  occupier.  I 
should  not  have  thought  that  the  carrying  one  or  two  mines  into  the 


SECT.    I.]  KKiilXA    V.    KKYN.  11 

bed  of  the  sea  beyond  low-water  mark  could  have  any  real  bearing  on 
a  question  of  international  law  like  the  present. 

But  the  Act  just  referred  to,  and  the  circumstances  out  of  which  it 
arose,  have  been  brought  impressivel}-  to  our  attention  by  the  Lord 
Chief  Justice  of  the  Common  Pleas,  as  showing  that,  according  to  par- 
liamentary exposition,  the  bed  of  the  sea  beyond  low-water  mark  is  in 
the  Crown.  I  cannot  help  thinking  that,  when  the  matter  comes  to  be 
looked  at  a  little  more  closely,  it  will  be  found  that  the  facts  by  no 
means  warrant  this  conclusion.  The  Duchy  of  Cornwall,  which  is  vested 
in  His  Royal  Highness  the  Prince  of  Wales,  extends,  as  is  known,  to 
low-water  mark.  Mines  existing  under  the  bed  of  the  sea  within  the 
low-water  mark  having  been  carried  out  beyond  it,  a  question  was 
raised  on  the  part  of  the  Crown  as  to  whether  the  minerals  beyond  the 
low-water  mark,  and  not  within  the  county  of  Cornwall,  as  also  those 
lying  under  the  sea-shore  between  high  and  low-water  mark  within  the 
count}'  of  Cornwall,  and  under  the  estuaries  and  tidal  rivers  within  the 
count}',  did  not  belong  to  the  Crown.  The  matter  having  been  referred 
to  Sir  John  Patteson,  his  decision  as  to  the  mines  and  minerals  below 
low-water  mark  was  in  favor  of  the  Crown  ;  with  reference  to  the 
others,  in  favor  of  the  duch}-.  Not  having  had  the  advantage  of  see- 
ing Sir  John  Patteson's  award,  I  am  unaware  whether  the  precise 
grounds  on  which  his  decision  proceeded  are  stated  in  it,  but  the  terms 
in  which  it  was  framed  may  be  gathered  with  perfect  precision  from  the 
recitals  of  the  Act  of  Parliament  which,  b}'  arrangement,  was  passed 
shortl}'  afterwards  to  give  statutor\'  effect  to  the  award.  From  the 
recitals  in  the  preamble  to  the  Act  it  appears  that  the  award  was  ver}^ 
carefully,  I  may  say  cautioush',  drawn.  After  stating  the  matter  in 
dispute,  and  the  reference  to  Sir  John  Patteson,  the  preamble  goes  on 
to  recite  that  the  arbitrator  had  decided,  — 

"  First,  that  the  right  to  all  mines  and  minerals  lying  under  the  sea- 
shore between  high  and  low-water  marks  within  the  said  county  of 
Cornwall,  and  under  estuaries  and  tidal  rivers,  and  other  places, 
even  below  low-water  mark,  being  in  and  part  of  the  said  county,  is 
vested  in  His  Royal  Highness  as  part  of  the  soil  and  territorial  posses- 
sions of  the  Duciiy  of  Cornwall.  Secondly,  that  the  right  to  all  mines 
and  minerals  lying  below  low-water  mark,  under  the  open  sea  adjacent 
to,  but  not  being  part  of,  the  county  of  Cornwall,  is  vested  in  Hei 
Majesty  the  Queen  in  right  of  her  Crown,  although  such  n)inerals  may 
or  might  be  won  b}'  woikings  commenced  above  low-water  mark  and 
extended  below  it." 

The  difference  between  the  two  parts  of  this  recital  is  at  once  appar- 
ent. When  dealing  with  that  which  is  within  low-water  mark,  the 
award  declares  the  right  to  the  mines  and  minerals  inider  the  sea-shoro 
to  be  vested  in  His  Royal  Highness  "as  part  of  the  soil  and  territo- 
rial possessions  of  the  Diidiy  of  Cornwall."  But  when  the  learned 
arbitrator  conies  to  (h-al  witii  tlu!   nmics  ami    mini  rals   below  low-water 


12  REGINA   V.    KEYN  [CHAP.    I. 

mark,  he  stops  short  of  saying  that  these  mines  and  minerals  belong 
to  Her  Majesty  by  virtue  of  any  ownership  in  the  soil.  He  confines  him- 
self to  awarding  that  the  right  to  such  mines  and  minerals  is  vested  in 
Her  Majesty  ''  in  right  of  her  Crown."  What  the  grounds  were  on  which 
this  decision  was  based  I  can  only  conjecture.  Sir  John  Patteson 
may  have  held,  on  the  authority  of  Collis  (p.  53),  that  a  subject  cannot 
have  any  ownership  in  the  soil  below  low-water  mark,  —  and,  though 
standing  next  to  the  Throne,  the  Prince  of  Wales  is  still  a  subject,  — 
and  that,  as  between  the  Crown  and  a  subject  as  regards  property  in 
or  under  the  open  sea,  the  Crown  had  the  better  right.  Or  the  deci- 
sion may  have  been  founded  on  the  peculiar  constitution  of  the  Duchy 
of  Cornwall,  which  is  settled  by  Act  of  Parliament  and  occasionally 
reverts  to  the  Crown.  I  cannot  help  thinking  that  if  the  arbitrator 
had  proceeded  on  the  ground  that  the  bed  of  the  sea  below  low-water 
mark  belonged  to  the  Crown,  he  would  have  said  so,  as  he  had  just  be- 
fore done  with  reference  to  the  soil  above  low-water  mark.  It  is  true 
that,  when  we  come  to  the  enacting  part  of  the  statute,  that  which  had 
been  left  unsaid  by  Sir  John  Patteson  is  supplied.  The  mines  and 
minerals  beyond  low-water  mark  are  enacted  and  declared  to  be  in  the 
Queen,  in  right  of  her  Crown,  as  part  of  the  soil  and  possessions  of 
the  Crown,  just  as  the  mines  and  minerals  within  low-water  mark  are 
stated  to  be  vested  in  the  Prince  of  Wales  as  Duke  of  Cornwall,  in 
right  of  the  Duchy  of  Cornwall,  as  part  of  the  soil  and  possessions  of 
the  duchy.  But  it  is  expressly  declared  that  this  is  to  be  taken  to  be 
so  only  "  as  between  the  Queen  in  light  of  her  Crown,  and  the  Prince 
of  Wales  in  right  of  the  Duchy  of  Cornwall,"  and  the  rights  of  all 
other  persons  are  expressly  preserved.  I  am  surprised,  I  own,  that  we 
should  be  asked  to  look  on  this  piece  of  legislation  as  a  parliamentary 
recognition  of  the  universal  right  of  the  Crown  to  the  ownership  of  the 
bed  of  the  sea  below  low-water  mark.  This  was  a  bill  for  the  settle- 
ncnt  of  the  question  as  to  the  right  to  particular  mines  and  minerals 
between  the  Crown  and  the  duchy,  a  measure  in  which  both  the  royal 
personages  particularly  concerned  and  their  respective  advisers  con- 
curred, and  in  which  no  other  person  whatever  was  interested.  To 
what  member  of  Parliament,  even  the  most  eccentric,  could  it  possibly 
have  occurred  to  raise  an  objection  to  it  on  the  ground  that  it  involved 
an  assertion  of  the  Queen's  right  of  propert}'  in  the  bed  of  the  sea? 
To  whom  would  it  occur  that,  in  passing  it.  Parliament  was  asserting 
the  right  of  the  Crown  to  the  bed  of  the  sea  over  the  three-mile  dis- 
tance, instead  of  settling  a  dispute  as  to  the  specific  mines  which  were 
in  question?  With  the  most  unfeigned  respect  for  my  learned  col- 
league, I  cannot  but  think  that  he  has  attached  to  this  piece  of  legisla- 
tion a  degree  of  importance  to  which  it  is  by  no  means  entitled. 

It  thus  appearing,  as  it  seems  to  me,  that  the  littoral  sea  beN'ond 
low-water  mark  did  not,  as  distinguished  from  the  rest  of  the  high 
seas,  originally  form  part  of  the  territory  of  the  realm,  the  question 
again  presents  itself,  when  and  how  did  it  become  so?     Can  a  portion 


SECT.    I.]  BEGINA    V.    KEYX.  13 

of  that  which  was  before  high  sea  have  been  converted  into  British  ter- 
ritory, without  anv  action  on  the  part  of  the  British  Government  or 
legislature  —  bv  the  mere  assertions  of  writers  on  public  law  —  or  even 
l)y  the  assent  of  oilier  nations? 

And  when  in  support  of  this  position,  or  of  the  theory  of  the  three- 
mile  zone  in  general,  the  statements  of  the  writers  on  international  law 
are  relied  on,  the  question  may  well  be  asked,  upon  what  authority  are 
these  statements  founded?  When  and  in  what  manner  have  the  nations, 
who  are  to  be  affected  b}-  such  a  rule  as  these  writers,  following  one 
another,  have  laid  down,  signified  their  assent  to  it?  to  say  nothing  of 
the  difficulty  which  might  be  found  in  saying  to  which  of  these  con- 
flicting opinions  such  assent  had  been  given. 

For,  even  if  entire  unanimity  had  existed  in  respect  of  the  important 
particulars  to  which  I  have  referred,  in  place  of  so  much/liscrepanc}'  of 
opinion,  the  question  would  still  remain,  how  far  the  law  as  stated  by 
the  publicists  had  received  the  assent  of  the  civilized  nations  of  the 
world.  For  writers  on  international  law,  however  valuable  their  labors 
nia\-  be  in  elucidating  and  ascertaining  the  principles  and  rules  of  law, 
cannot  make  the  law.  To  be  binding,  the  law  must  have  received  the 
assent  of  the  nations  who  are  to  be  bound  by  it.  This  assent  may  be 
express,  as  by  treaty  or  the  acknowledged  concurrence  of  governments, 
or  may  be  implied  from  established  usage,  —  an  instance  of  which  is 
to  be  found  in  the  fact  that  merchant  vessels  on  the  high  seas  are  held 
to  be  subject  only  to  the  law  of  the  nation  under  whose  flag  they  sail, 
while  in  the  ports  of  a  foreign  state  they  are  subject  to  the  local  law  as 
well  as  to  that  of  their  own  country.  In  the  absence  of  proof  of  assent, 
as  derived  from  one  or  other  of  these  sources,  no  unanimity  on  the 
part  of  theoretical  writers  would  warrant  the  judicial  application  of  the 
law  on  the  sole  authority  of  their  views  or  statements.  Nor,  in  my 
opinion,  would  the  clearest  proof  of  unanimous  assent  on  the  part  of 
other  nations  be  sufficient  to  authorize  the  tribunals  of  this  country  to 
ap[)ly,  without  an  Act  of  Parliament,  what  would  practically  amount 
to  a  new  law.  In  so  doing  we  should  be  unjustifiably  usurping  the 
province  of  the  legislature.  The  assent  of  nations  is  doubtless  suffi- 
cient to  give  the  power  of  parliamentary  legislation  in  a  matter  other- 
wise within  the  sphere  of  international  law ;  but  it  would  be  powerless 
to  confer  without  such  legislation  a  jurisdiction  beyond  and  unknown 
to  the  law,  such  as  that  now  insisted  on,  a  jurisdiction  over  foreigners 
in  foreign  ships  on  a  portion  of  the  high  seas. 

When  I  am  told  that  all  other  nations  have  assented  to  such  an  abso- 
lute dominion  on  the  part  of  the  littoral  state,  over  this  portion  of  the 
sea,  as  that  their  ships  may  be  excluded  from  it,  and  that,  without 
anv  open  legislation,  or  notif'(!  to  them  or  their  subjects,  the  latter  may 
be  iield  liable  to  the  local  l:i\v,  I  ask,  first,  wha»  proof  tliere  is  of  such 
assent  as  here  asserted  ;  and,  secondly,  to  what  extent  has  such  assent 
been  carried?  a  question  of  infinite  importance,  when,  undirected  by 
lo^islation,  we  are  called  upon  to  apply  tlu-  I:iw  on  the  strength  of  such 


14  lefiGlNA   V.   KEYN.  [CHAP.   I. 

assent.  It  is  said  that  we  are  to  take  the  statements  of  the  publicists 
as  conclusive  proof  of  the  assent  in  question,  and  much  has  been  said 
to  impress  on  us  the  respect  which  is  due  to  their  authority,  and  that 
the}'  are  to  be  looked  upon  as  witnesses  of  the  facts  to  which  they 
speak,  witnesses  whose  statements,  or  the  foundation  on  which  those 
statements  rest,  we  are  scarcely  at  liberty  to  question.  I  demur  alto- 
gether to  this  position.  I  entertain  a  profound  respect  for  the  opinion 
of  jurists  when  dealing  with  the  matters  of  juridical  principle  and  opin- 
ion, but  we  are  here  dealing  with  a  question  not  of  opinion,  but  of  fact, 
and  I  must  assert  my  entire  liberty  to  examine  the  evidence  and  see 
upon  what  foundation  these  statements  are  based.  The  question  is 
not  one  of  theoretical  opinion,  but  of  fact,  and,  fortunately,  the  writers 
upon  whose  statements  we  are  called  upon  to  act  have  afforded  us  the 
means  of  testing  those  statements  b}'  reference  to  facts.  The}'  refer  us 
to  two  things,  and  to  these  alone,  —  treaties  and  usage.  Let  us  look  a 
little  more  closely  into  both. 

First,  then,  let  us  see  how  the  matter  stands  as  regards  treaties.  It 
may  be  asserted,  without  fear  of  contradiction,  that  the  rule  that  the 
sea  surrounding  the  coast  is  to  be  treated  as  a  part  of  the  adjacent 
territory,  so  that  the  state  shall  have  exclusive  dominion  over  it,  and 
that  the  law  of  the  latter  shall  be  generally  applicable  to  those  passing 
over  it  in  the  ships  of  other  nations,  has  never  been  made  the  subject- 
matter  of  any  treaty,  or,  as  matter  of  acknowledged  right,  has  formed 
the  basis  of  any  treaty,  or  has  even  been  the  subject  of  diplomatic  dis- 
cussion. It  has  been  entirely  the  creation  of  the  writers  on  interna- 
tional law.  It  is  true  that  the  writers  who  have  been  cited  constantl}^ 
refer  to  treaties  in  support  of  the  doctrine  they  assert.  But  when  the 
treaties  they  refer  to  are  looked  at,  they  will  be  found  to  relate  to 
two  subjects  only,  —  the  observance  of  the  rights  and  obligations  of 
neutrality,  and  the  exclusive  right  of  fishing.  In  fixing  the  limits  to 
which  these  rights  should  extend,  nations  have  so  far  followed  the 
writers  on  international  law  as  to  adopt  the  three-miles  range  as  a  con- 
venient distance.  There  are  several  treaties  b}'  which  nations  have 
engaged,  in  the  event  of  either  of  them  being  at  war  with  a  third,  to 
treat  the  sea  within  three  miles  of  each  other's  coasts  as  neutral  terri- 
tory, within  which  no  warlike  operations  should  be  carried  on  ;  instances 
of  which  will  be  found  in  the  various  treatises  on  international  law. 

Thus,  for  instance,  in  the  treaties  of  commerce,  between  Great  Brit- 
ain and  France,  of  September,,  1786  ;  between  France  and  Russia,  of 
January,  1787  ;  between  Great  Britain  and  the  United  States,  of  Octo- 
ber, 1794,  each  contracting  party  engages,  if  at  war  with  any  other 
nation,  not  to  carr}'  on  hostilities  within  cannon-shot  of  the  coast 
of  the  other  contracting  party ;  or,  if  the  other  should  be  at  war,  not 
to  allow  its  vessels  to  be  captured  within  the  like  distance.  Thei'e  are 
many  other  treaties  of  the  like  tenor,  a  list  of  which  is  given  by  Azuni 
(vol.  ii.  p.  78)  ;  and  various  ordinances  and  laws  have  been  made  by 
the  different  states  in  order  to  give  effect  to  them. 


SECT.    I.]  REGINA    V.    KEYN.  15 

Again,  nations,  possessing  opposite  or  neighboring  coasts,  bordering 
on  a  common  sea,  have  sometimes  found  it  expedient  to  agree  tluit 
the  subjects  of  each  shall  exercise  an  exclusive  right  of  fishing  to  a 
given  distance  from  their  own  shores,  and  here  also  have  accepted  the 
three  miles  as  a  convenient  distance.  8uch,  for  instance,  are  the  trea- 
ties made  between  this  country  and  the  United  States  in  relation  to  the 
fishery-  off  the  coast  of  Newfoundland,  and  those  between  this  countr\- 
and  France  in  relation  to  the  fishery  on  their  respective  shores  ;  and 
local  laws  have  been  passed  to  give  etiect  to  these  engagements. 

But  in  all  these  treaties  this  distance  is  adopted,  not  as  matter  of 
existing  right  established  by  the  general  law  of  nations,  but  as  matter 
of  mutual  concession  and  convention.  Instead  of  upholding  the  doc- 
trine contended  for,  the  fact  of  these  treaties  having  been  entered  into 
has  rather  the  opposite  tendency  :  for  it  is  obvious  that,  if  the  territo- 
rial right  of  a  nation  bordering  on  the  sea  to  this  portion  of  the  adja- 
cent waters  had  been  established  b3'  the  common  assent  of  nations, 
these  treat}'  arrangements  would  have  been  wholly  superfluous.  Each 
nation  would  have  been  bound,  independently  of  treaty  engagement,  to 
respect  the  neutrality  of  the  other  in  these  waters  as  much  as  in  its 
inland  waters.  The  foreigner  invading  the  rights  of  the  local  fisherman 
would  have  been  amenable,  consistently  with  international  law,  to  local 
legislation  prohibiting  such  infringement,  without  any  stipulation  to 
that  effect  by  treaty.  For  what  object,  then,  have  treaties  been  resorted 
to?  Manifestly  in  order  to  obviate  all  questions  as  to  concurrent  or 
conflicting  rights  arising  under  the  law  of  nations.  Possibly,  after 
these  precedents  and  all  that  has  been  wu'ittcn  on  this  subject,  it  may 
not  be  too  much  to  say  that,  independently  of  treaty,  the  three-mile 
belt  of  sea  might  at  this  day  be  taken  as  belonging,  for  these  purposes, 
to  the  local  state.  But  it  is  scarcely  logical  to  infer,  from  such  treaties 
alone,  that,  because  nations  have  agreed  to  treat  the  littoral  sea  as 
belonging  to  the  country  it  adjoins,  for  certain  specified  objects,  they 
have  therefore  assented  to  forego  all  other  rights  previously  enjoyed  in 
common,  and  have  submitted  themselves,  even  to  the  extent  of  the 
right  of  navigation  on  a  portion  of  the  high  seas,  and  the  liability  of 
their  subjects  therein  to  the  criminal  law,  to  the  will  of  the  local  sov- 
ereign, and  the  jurisdiction  of  the  local  state.  E(]ually  illogical  is  it, 
as  it  seems  to  me,  from  the  adoption  of  the  three-mile  distance  in  these 
particular  instances,  to  assume,  independently  of  everything  else,  a 
recognition,  by  the  common  assent  of  nations,  of  the  principle  that  tiie 
subjects  of  one  state  passing  in  ships  within  three  miles  of  the  coast 
of  another  shall  be  in  all  respects  subject  to  the  law  of  the  latter. 
It  may  be  that  the  maritime  nations  of  the  world  are  prepared  to 
acquiesce  in  the  appropriation  of  tiie  littoral  sea ;  but  I  cannot  thinlc 
that  these. treaties  help  us  much  towards  arriving  at  the  conclusion 
that  this  appropriation  has  actually  taken  place.  At  all  events,  the 
question  remains,  whether  judicially  we  can  infer  that  the  nations  wlio 
have  been  parties  to  tliese   treaties,  and  still    fmthcr   those  wlio  ii;ne 


16  REGINA   V.    KKYN.  [CHAP.    I. 

not,  have  thereb}-  assented  to  the  application  of  the  criminal  law  of 
other  nations  to  their  subjects  on  the  waters  in  question,  and  on  the 
strength  of  such  inference  so  apply  the  criminal  law  of  this  country. 

The  uncertaint}'  in  which  we  are  left,  so  far  as  judicial  knowledge 
is  concerned,  as  to  the  extent  of  such  assent,  likewise  presents,  I  think, 
a  very  serious  obstacle  to  our  assuming  the  jurisdiction  we  are  called 
upon  to  exercise,  independently  of  the,  to  my  mind,  still  more  serious 
difficult}',  that  we  should  be  assuming  it  without  legislative  warrant. 

So  much  for  treaties.  Then  how  stands  the  matter  as  to  usage,  to 
which  reference  is  so  frequently  made  by  the  publicists  in  support  of 
their  doctrine?  When  the  matter  is  looked  into,  the  only  usage  found 
to  exist  is  such  as  is  connected  with  navigation,  or  with  revenue,  local 
fisheries,  or  neutrality,  and  it  is  to  these  alone  that  the  usage  relied  on 
is  confined.  Usage  as  to  the  application  of  the  general  law  of  the 
local  state  to  foreigners  on  the  littoral  sea  there  is  actuallj'  none.  No 
nation  has  arrogated  to  itself  the  right  of  excluding  foreign  vessels 
from  the  use  of  its  external  littoral  waters  for  the  purpose  of  naviga- 
tion, or  has  assumed  the  power  of  making  foreigners  in  foreign  ships 
passing  through  these  waters  subject  to  its  law,  otherwise  than  in 
respect  of  the  matters  to  which  I  have  just  referred.  Nor  have  the 
tribunals  of  an}'  nation  held  foreigners  in  these  waters  amenable  gen- 
erally to  the  local  criminal  law  in  respect  of  offences.  It  is  for  the  first 
time  in  the  annals  of  jurisprudence  that  a  court  of  justice  is  now  called 
upon  to  apply  the  criminal  law  of  the  country  to  such  a  case  as  the 
present. 

It  may  well  be,  I  say  again,  that  —  after  all  that  has  been  said  and 
done  in  this  respect  —  after  the  instances  which  have  been  mentioned 
of  the  adoption  of  the  three-mile  distance,  and  the  repeated  assertion 
of  this  doctrine  by  the  writers  on  public  law,  a  nation  which  should  now 
deal  with  this  portion  of  the  sea  as  its  own,  so  as  to  make  foreigners 
within  it  subject  to  its  law,  for  the  prevention  and  punishment  of  offences, 
would  not  be  considered  as  infringing  the  rights  of  other  nations.  But 
I  apprehend  that  as  the  ability  so  to  deal  with  these  waters  would 
result,  not  from  any  original  or  inherent  right,  but,  from  the  acquies- 
cence of  other  states,  some  outward  manifestation  of  the  national 
will,  in  the  shape  of  open  practice  or  municipal  legislation,  so  as  to 
amount,  at  least  constructively,  to  an  occupation  of  that  which  was  be- 
fore unappropriated,  would  be  necessary  to  render  the  foreigner,  not 
previously  amenable  to  our  general  law,  subject  to  its  control.  That 
such  legislation,  whether  consistent  with  the  general  law  of  nations  or 
not,  would  be  binding  on  the  tribunals  of  this  country  —  leaving  the 
question  of  its  consistency  with  international  law  to  be  determined 
between  the  governments  of  the  respective  nations  —  can  of  course 
admit  of  no  doubt.  The  question  is  whether  such  legislation  would 
not,  at  all  events,  be  necessary  to  justify  our  courts  in  applying  the 
law  of  this  country  to  foreigners  under  entirely  novel  circumstances  in 
which  it  has  never  been  appUed  before. 


SECT.    I.]  REGINA    V.    KEYN.  17 

It  is  obviously  one  thing  to  say  that  the  legislature  of  a  nation  may, 
from  the  common  assent  of  other  nations,  have  acquired  the  full  riglit 
To  legislate  over  a  part  of  that  which  was  before  high  sea,  and  as  such 
common  to  all  the  world  ;  anotlier  and  a  very  ditferent  thing  to  say 
that  the  law  of  the  local  state  becomes  thereby  at  once,  without  any- 
thing more,  applicable  to  foreigners  within  such  part,  or  that,  indepen- 
dently of  legislation,  the  courts  of  the  local  state  can  propria  vlffore  so 
apply  it.  The  one  position  does  not  follow  from  the  other;  and  it  is 
essential  to  keep  the  two  things,  the  power  of  Parliament  to  legislate, 
and  the  authority  of  our  courts,  without  such  legislation,  to  apply  the 
criminal  law  where  it  could  not  have  been  applied  before,  altogether 
distinct,  which,  it  is  evident,  is  not  always  done.  It  is  unnecessary  to 
the  defence,  and  equally  so  to  the  decision  of  the  case,  to  determine 
whether  Parliament  has  the  right  to  treat  the  tliree-mile  zone  as  part  of 
the  realm  consistently  with  international  law.  That  is  a  matter  on 
which  it  is  for  Parliament  itself  to  decide.  It  is  enough  for  us  that  it 
lias,  so  far  as  to  be  binding  upon  us,  the  power  to  do  so.  The  question 
is  whether,  acting  judicially,  we  can  treat  the  power  of  Parliament  to 
legislate  as  making  up  for  the  absence  of  actual  legislation.  I  ain 
clearly  of  opinion  that  we  cannot,  and  that  it  is  onl}' in  the  instances  in 
which  foreigners  on  the  seas  have  been  made  specifically  liable  to  our 
law  V)y  statutory  enactment  that  that  law  can  be  applied  to  them.^ 

But  the  difficulties  which  stand  in  the  w-av  of  the  prosecution  are 
not  yet  exhausted,  A  technical  didiculty  presents  itself,  which  appears 
to  be  of  a  formidable  character.  Assuming  everything,  short  of  the 
ultimate  conclusion,  to  be  conceded  to  the  prosecution  —  granting  that 
the  three-mile  zone  forms  part  of  the  territorj'  or  realm  of  England,  and 
that  without  parliamentary  interference  the  territorial  sea  lias  become 
l)art  of  the  realm  of  England,  so  that  jurisdiction  has  been  acquired 
over  It,  the  question  arises,  —  In  whom  is  the  jurisdiction?  The  indict- 
ment alleges  that  the  offence  was  committed  on  the  high  seas.  To  sui> 
port  this  averment  the  place  in  question  must  still  remain  part  of  the 
high  .sea.  But  if  it  is  to  be  held  to  be  the  high  sea,  and  so  within  the 
jurisdiction  of  the  admiral,  the  prosecution  fails,  if  the  admiral  never 
had  jurisdiction  over  foreigners  in  foreign  ships,  the  proof  of  which 
totally  fails,  and  the  negative  of  which,  I  think,  must  be  considered  as 
established  :  and  no  assent  on  the  part  of  foreign  nations  to  the  exer- 
cise of  dominion  and  jin-isdiction  over  these  waters  can,  without  an 
Act  of  Parliament,  confer  on  tlic  admiral  or  any  other  jndfce  of  tliis 
country  a  larger  jurisdiction  than  he  possessed  iK-fore.  If  the  littoral 
sea  is  to  be  considered  territory  —  in  other  words,  no  longer  high  sea 
—  the  present  indictment  fails,  and  this,  whether  the  part  in  question 
has  become  part  of  a  county  or  not.  The  only  distinction  known  to 
the  law  of  England,  as  regards  the  sea,  is  between  such  part  of  Ihc  sea 

1  Tho  loarnoil  T'liicf  Jiistico  tlifti  examined  tlic  statutes,  ami  decide. I  tli.-il  llicre  w;us 
no  statutory  jurisdiction  in  tliiw  case.  —  Ki>. 


18  REGINA    V.    KEYN.  [CHAP.    L 

as  is  within  tlie  body  of  a  county  and  sucli  as  is  not.  In  ttie  first  tliere 
is  jurisdiction  over  the  foreigner  on  a  foreign  ship ;  in  the  other,  there 
IS  not.  Such  a  thing  as  sea  which  shall  be  at  one  and  the  same  time 
high  sea  and  also  part  of  the  territory  of  the  realm,  is  unknown  to  the 
present  law,  and  never  had  an  existence,  except  in  the  old  and  sense- 
less theory  of  a  universal  dominion  over  the  narrow  seas. 

To  put  this  shortly-.  To  sustain  this  indictment  the  littoral  sea  must 
still  be  considered  as  part  of  the  high  seas,  and  as  such,  under  the 
jurisdiction  of  the  admiral.  But  the  admiral  never  had  criminal  juris- 
diction over  foreign  ships  on  the  high  seas.  How,  when  exercising  the 
functions  of  a  British  judge,  can  he,  or  those  acting  in  substitution  for 
him,  assume  a  jurisdiction  which  heretofore  he  did  not  possess,  unless 
authorized  by  statute?  On  the  other  hand,  if  this  sea  is  to  be  consid- 
ered as  territor}',  so  as  to  make  a  foreigner  within  it  liable  to  the  law 
of  England,  it  cannot  come  under  the  jurisdiction  of  the  Admiralty. 

In  the  result,  looking  to  the  fact  that  all  pretension  to  sovereignty 
or  jurisdiction  over  foreign  ships  in  the  narrow  seas  has  long  since 
been  wholly  abandoned  —  to  the  uncertainty'  which  attaches  to  the  doc- 
trine of  the  publicists  as  to  the  degree  of  sovereignty  and  jurisdiction 
which  may  be  exercised  on  the  so-called  territorial  sea  —  to  the  fact 
that  the  right  of  absolute  sovereignty  therein,  and  of  penal  jurisdiction 
over  the  subjects  of  other  states,  has  never  been  expressly  asserted  or 
conceded  among  independent  nations,  or,  in  practice,  exercised  and 
acquiesced  in,  except  for  violation  of  neutrality  or  breach  of  revenue  or 
fishery  laws,  which,  as  has  been  pointed  out,  stand  on  a  different  foot- 
ing—  as  well  as  to  the  fact  that,  neither  in  legislating  with  reference 
to  shipping,  nor  in  respect  of  the  criminal  law,  has  Parliament  thought 
proper  to  assume  territorial  sovereignty  over  the  three-mile  zone,  so  as 
to  enact  that  all  offences  committed  upon  it,  by  foreigners  in  foreign 
ships,  should  be  within  the  ci'iminal  law  of  this  countrj^,  but,  on  the 
contrary,  wherever  it  was  thought  right  to  make  the  foreigner  amenable 
to  our  law,  has  done  so  by  express  and  specific  legislation  —  I  cannot 
think  that,  in  the  absence  of  all  precedent,  and  of  any  judicial  decision 
or  authority  applicable  to  the  present  purpose,  we  should  be  justified  in 
holding  an  offence,  committed  under  such  circumstances,  to  be  punish- 
able by  the  law  of  England,  especially  as  in  so  holding  we  must  declare 
the  whole  body  of  our  penal  law  to  be  applicable  to  the  foreigner  pass- 
ing our  shores  in  a  foreign  vessel  on  his  way  to  a  foreign  port. 

I  am  by  no  means  insensible  to  the  argument  ab  inco7ivenienti^ 
pressed  upon  us  by  the  Solicitor-General.  It  is,  no  doubt,  desirable, 
looking  to  the  frequency'  of  collisions  in  the  neighborhood  of  our  coasts, 
that  the  commanders  of  foreign  vessels,  who,  by  unskilful  navigation 
or  gross  want  of  care,  cause  disaster  or  death,  should  be  as  much 
amenable  to  the  local  law  as  those  navigating  our  own  vessels,  instead 
of  redress  having  to  be  sought  in  the,  perhaps,  distant  country  of  the 
offender.  But  the  remedy  for  the  deficiency  of  the  law,  if  it  can  be 
made  good  consistentl}'  with  international  law,  —  as  to  which  we  are  not 


CHAP.    I.]  EEGIX.V    V.    KEYN.  19 

called  upon  to  pronounce  an  opinion,  —  should  l)c  supplied  by  the  action 
of  the  legislature,  with  whom  the  responsibility  for  any  imperfection  of 
the  law  alone  rests,  not  by  a  usurpation  on  our  part  of  a  jurisdiction 
which,  without  legislation,  we  do  not  judicially  possess. 

This  matter  has  been  sometimes  discussed  upon  the  assumption  that 
the  alternative  of  the  uon-exercise  of  jurisdiction  on  the  part  of  our 
courts  must  be  the  total  impunity  of  foreigners  in  respect  of  colUsion 
arising  from  negligence  in  the  vicinity  of  our  coast.  But  this  is  a  mis- 
taken view.  If  by  the  assent  of  other  nations  the  three-mile  belt  of 
sea  has  been  brought  under  the  dominion  of  this  country,  so  that  con- 
sistently with  the  right  of  other  nations  it  may  be  treated  as  a  portion  of 
British  territory,  which,  of  course,  is  assumed  as  the  foundation  of  the 
jurisdiction  which  the  courts  of  law  are  here  called  upon  to  exercise,  it 
follows  that  Parliament  can  legislate  in  respect  of  it.  Parliament  has 
only  to  do  so,  and  the  judges  of  the  land  will,  of  course,  as  in  duty 
bound,  give  full  effect  to  the  law  which  Parliament  shall  so  create.^ 

Coleridge.  C.  J.  I  agree  in  thinking  it  clear  that  unless  the  place 
where  the  offence  was  committed  was  part  of  the  realm  of  England 
locallv,  or  unless  the  offence  itself  was  committed  on  board  a  British 
ship,  whether  the  British  ship  was  locally  within  the  realm  of  England, 
or  without  it,  the  conviction  cannot  stand.  But  first,  I  think  the 
offence  was  committed  within  the  realm  of  England ;  and  if  so,  there 
was  jurisdiction  to  try  it.  Whether  there  was  any  jurisdiction,  and  if 
there  were,  what  particular  court  was  to  exercise  it,  are  two  separate 
questions;  and  I  am  here  concerned  only  with  the  former.  Now  the 
offence  was  committed  much  nearer  to  the  line  of  low-water  mark  than 
three  miles,  and,  therefore,  in  ray  opinion,  upon  English  territory.  I 
pass  by  for  the  moment  the  question  of  the  exact  limit  of  the  realm  of 
England  beyond  low-water  mark.  I  am  of  ot)inion  that  it  does  go 
beyond  low-water  mark,  and  if  it  does,  no  limit  has  ever  been  sug- 
gested which  could  exclude  from  the  realm  the  place  where  this  offence 
was  committed.  But  for  the  difference  of  opinion  upon  the  bench 
and  for  the  great  deference  which  is  due  to  tiiose  who  differ  from  me, 
I  should  have  said  it  was  imi)Ossible  to  hold  that  England  ended  with 
low-water  mark.  I  do  not  of  coiu'se  forget  that  it  is  freely  admitted 
to  be  within  the  competency  of  Parliament  to  extend  the  realm,  how  far 
soever  it  pleases  to  extend  it  by  enactments,  at  least  so  as  to  bind  the 
tril)unals  of  the  country  ;  and  I  admit  equally  freely  that  no  statute 
has  in  plain  terms,  or  by  definite  limits,  so  extended  it.  But,  in  my 
judgment,  no  Act  of  Parliament  was  required.  Tlie  proposition  con- 
tended for,  as  I  understand,  is  tiiat  for  any  act  of  violence  committed 
by  a  foreigner  upon  an   English  subject  witliiu  a  few  feet  of  low-water 

i  Part  of  the  oiiiiiion  is  omitted. 

Bkamwpm.l,  J.  A.,  Kklly,  C.  B.,  Lcsii,  .1.,  and  Sir  li.  Piiiliimouk  delivered 
opinions  concuriin<;  with  tliat  of  Cockbukn,  C.  J.  Poi.i.cik,  W.,  and  1''iki,I),  J.  also 
concurred. 

Biir.TT  and  AMi'in.Krr,  .I.F.  A.,  Dknman',  Ouovk  and  Linih.kv,  .M.,  delivered  opin* 
ions  coucuning  with  that  of  Colkkidue,  C.  J.  —  Kn. 


20  KEGINA    V.    KEYN.  [CHAP.    I 

mark,  unless  it  happens  on  board  a  British  ship,  the  foreigner  cannot 
be  tried,  and  is  dispunishable.     As  I  understand  the  proposition,  it 
follows,  further,  that  even  if  tlie  English  subject  be  an  officer  of  the 
Crown,  and  the  violence  is  coniuiitted  by  the  foreigner  in  resisting  the 
English  officer  in  the  execution  of  duties  which  the  penal  or  police 
laws  of  the  country  compel  him  to  perform,  laws  to  which  it  is  admit- 
ted this  country  has  for  a  series  of  years  subjected  her  coast  waters, 
still  the  consequence  is  the  same,  and  the  act  of  resistance,  though 
resulting  in  the  death  of  the  officer,  unless  it  takes  place  on  board  a 
British  ship,  cannot  be  made  the  subject  of  any  criminal  proceeding  in 
any  court  of  the  country  where  the  officer  has  been  outraged.     This 
it  is  said  has  always   been    the    law,  and    it  is  the  law   now.      The 
argument   ah   inconvenietdi    is    perhaps    not   one   which    sound   logic 
recognizes,   and    a  startling   conclusion   does   not   always  show   that 
the  premises  from  which  it    follows  are  untenable.     But  the  incon- 
venience  here  is   so  grave,   and    the   conclusion   so  startling,   as  to 
make  it  reasonable,   I    think,   to  say  that  the   burden  of  proof  lies 
heavy  upon  those  who  disregard  the  inconvenience,  and  maintain  the 
conclusion.     Now  my  brothers  Brett  and  Lindley  have  shown  that  by 
a  consensus  of  writers,  without  one  single  authority  to  the  contrary, 
some  portion  of  the  coast  waters  of  a  country  is  considered  for  some 
purposes  to  belong  to  the  country  the  coasts  of  which  they  wash.     I 
concur  in  thinking  that  the  discrepancies  to  be  found  in  these  writers 
as  to  the  precise  extent  of  the  coast  waters  which  belong  to  a  country 
(discrepancies,  after  all,  not  serious  since  the  time  at  least  of  Grotius) 
are  not  material  in  this  question  ;   because  they  all  agree  in  the  princi- 
ple that  the  waters,  to  some  point   beyond  low-water  mark,  belong  to 
the  respective  countries,  on  grounds  of  sense  if  not  of  necessity,  belong 
to  them  as  territory  of  sovereignty,  in  property,  exclusively,  so  that 
the  authority  of  Erance  or  Spain,  of  Holland  or  England,  is  the  only 
authority  recognized  over  the  coast  waters  which  adjoin  these  coun- 
tries.   This  is  established  as  solidly  as,  by  the  very  nature  of  the  case, 
any  proposition  of   international  law  can  be.     Strictly  speaking,  in- 
ternational law  is  an  inexact  expression,  and  it  is  apt  to  mislead  if  its 
inexactness  is   not  kept  in   mind.      Law  implies    a    lawgiver,  and  a 
tribunal  capable  of  enforcing  it  and  coercing  its  transgressors.     But 
there  is  no  common  lawgiver  to  sovereign  states ;    and  no  tribunal  has 
the  power  to  bind  them  by  decrees  or  coerce  them  if  they  transgress. 
The  law  of  nations  is  that  collection  of  usages  which  civilized  states 
have   agreed  to  observe  in  their  dealings  with  one  another.     What 
these  usages  are,  whether  a  particular  one  has  or  has  not  been  agreed 
to,  must  be  matter  of  evidence.     Treaties  and  acts  of  state  are  but 
evidence  of  the  agreement  of  nations,  and  do  not,  in  this  country  at 
least,  per  se  bind  the  tribunals.     Neither,  certainly,  does  a  conse7isus  of 
jurists  ;  but  it  is  evidence  of  the  agreement  of  nations  on  international 
points  ;  and  on  such  points,  when  they  arise,  the  English  courts  give 
effect,  as  part  of  English  law,  to  such  agreement.     Regarding  jurists, 


SECT.    I.]  REGINA    V.    KEYX.  21 

theu,  ic  the  light  of  witnesses,  it  is  their  competency  rather  tlian  thi-ir 
abiHty  which  most  concerns  us.  We  tind  a  miinber  of  men  of  education, 
of  many  different  nations,  most  of  them  quite  uninterested  in  main- 
taining any  particular  thesis  as  to  the  matter  now  in  question,  agreeing 
generally  for  nearly  three  centuries  in  the  proposition  that  the  territory 
of  a  maritime  country  extends  be\'ond  low-water  mark.  I  can  hardly 
myself  conceive  stronger  evidence  to  show  that,  as  far  as  it  depends  on 
the  agreement  of  nations,  the  territory  of  maritime  countries  does  so 
extend.  For  myself  I  must  add  that,  besides  their  competency,  I  have 
the  greatest  respect  and  admiration  for  the  character  and  aljilities  of 
such  of  these  writers  as  I  am  i)ersonally  familiar  with.  It  is  not  did!- 
cult  in  the  works  of  a  voluminous  writer,  or  indeed  of  any  writer,  nay, 
even  in  the  reported  judgments  of  great  judges,  to  find  statements 
exaggerated,  or  untenable,  beliefs  which  lapse  of  time  has  shown  to  be 
unwise,  prejudices  which  nuist  always  have  been  foolish.  Hut  these 
things  do  not  detract  from  the  just  authority  of  distinguished  men,  and, 
if  the  matter  were  to  be  determined  for  the  first  time,  I  should  not  hesi- 
tate to  hold  that  civilized  nations  had  agreed  to  this  i)rolongation 
of  the  territory  of  maritime  states,  upon  the  authority  of  the  writers 
who  have  been  cited  in  this  argument  as  laying  down  the  afhrmative  of 
this  proposition.  But  it  is  not  now  to  be  done  for  the  first  time.  For 
from  the  two  judgments  to  which  I  have  already  had  occasion  to  refer 
it  sufficiently  appears  that  a  number  of  English  judges,  of  the  very 
highest  authority,  have  themselves  accepted  and  acted  upon  the  author- 
ity of  these  jurists.  Lord  Talbot,  Lord  Ilardwicke,  Lord  IMansfield, 
Lord  Stowell,  and  Dr.  Lushiiigton,  form  altogetlier  a  body  of  judges 
sufficient  to  support  the  authority  of  the  writers  upon  whom  they  relied. 
Furthermore,  it  has  been  shown  that  English  judges  liave  held  repeat- 
edly that  these  coast  waters  are  portions  of  the  realm.  It  is  true  that 
this  particular  point  does  not  seem  ever  distinctly  to  have  arisen. 
But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington,  Lord  Ilatherley,  L.  C, 
p:rle,  C.  J.,  and  Lord  Wensleydale  (and  the  catalogue  might  l)e  largely 
extended)  have  all,  not  hastily,  l)ut  in  writing,  in  prepared  and  delib- 
erate judgments,  as  part  of  the  reasoning  necessary  to  support  their 
conclusions,  used  language,  some  of  them  repeatedly,  which  I  am 
unaltle  to  construe,  except  as  asserting,  on  the  part  of  these  eminent 
persons,  that  the  realm  of  England,  the  territory  of  England,  the 
property  of  the  State  and  Crown  of  England  over  the  water  and  the 
land  beneath  it,  extends  at  least  so  far  beyond  the  line  of  low  watir 
on  the  Eno-lish  coast  as  to  include  the  place  where  this  offence  was 
committed.  I  should  only  waste  time  if  I  were  to  go  through  again 
the  cases  which  my  learned  brothers  have  so  fully  and  so  aceurali'ly 
examined.  It  is,  I  i)resunie,  competent  for  the  court  to  overrule  those 
cases;  but  at  least  it  must  be  admitted  that  they  decide  as  nineh  as 
this.  It  is,  perhaps,  referring  to  weaker  authorities  in  order  to  sup- 
port stronger  ones;  but  I  will  add  that  the  English  and  American 
text  writers,  and  two  at  least  of  the  most  emincwit  Anieriean  judges, 


22  REGINA   V.    KEYN.  [CHAP.   I 

Marshall  and  Story,  have  held  the  same  thing.  Further,  at  least  in 
one  reraarl<able  instance,  the  British  Parliament  has  declared  and 
enacted  tliis  to  be  the  law.  In  the  present  reign  two  questions  arose 
between  Her  Majesty  and  the  Prince  of  Wales  as  to  the  property 
in  minerals  below  high-water  marlv  around  the  coast  of  Cornwall. 
The  first  question  was  as  to  the  property  in  minerals  between  high 
and  low-water  mark  around  the  coasts  of  that  county,  and  as  to 
the  property  in  minerals  below  low-water  mark  won  by  an  extension 
of  workings  begun  above  low-water  mark.  This  was  referred  by 
Lord  Chancellor  Cranwortli  on  the  part  of  Her  Majesty,  and  by  Lord 
Kingsdown,  the  then  Chancellor  of  the  Duchy,  on  the  part  of  the 
Prince  of  Wales,  to  the  arbitration  of  Su-  John  Patteson.  His  decision 
led  to  the  passing  of  an  Act  of  Parliament.  And  a  further  question  as 
to  the  minerals  below  low-water  mark  was  referred  by  Lord  Selborne, 
then  Sir  Eoundell  Palmer,  the  Queen's  Attorney-General,  and  Sir 
William  Alexander,  the  Attorne}'- General  to  the  x'rince  of  Wales,  to 
the  arbitration  of  Sir  John  Coleridge.  All  the  proceedings  in  both 
references  were  in  writing,  and  by  the  kindness  of  V'iscount  Portman, 
the  present  Lord  Warden  of  the  Stannaries,  I  have  been  furnished  with 
copies  of  the  whole  of  them.  As  might  be  expected  from  the  known 
characters  of  the  persons  who  drew  and  settled  all  the  statements  in 
both  cases,  the  greatest  learning  and  ability  were  displayed  in  them ; 
most  of  the  authorities  cited  before  us  are  cited  in  the  arguments  on 
behalf  of  the  Crown  and  the  Prince  of  Wales,  and  some  others  of  con- 
siderable importance  not  cited  to  us  are  cited  there.  The  whole  argu- 
ment on  the  part  of  the  Crown  was  founded  on  the  proposition  that  the 
fundus  maris  below  low-water  mark,  and  therefore  beyond  the  limits  of 
the  county  of  Cornwall,  belonged  in  property  to  the  Crown.  The 
Prince  was  in  possession  of  the  disputed  mines  ;  he  had  worked  them 
from  land  undoubtedly  his  own,  and,  therefore,  unless  the  Crown  had 
a  right  of  property  in  the  bed  of  the  sea,  not  as  first  occupier,  for  the 
prince  was  first  occupier,  and  was  in  occupation,  the  Crown  must  have 
failed.  The  argument  on  behalf  of  the  Duchy  was  twofold  :  first, 
that  all  which  adjoined  and  was  connected  with  the  County  of  Corn- 
wall passed  to  the  Dukes  of  Cornwall  under  the  terms  of  the  original 
grant  to  them  at  the  time  of  the  creation  of  the  Duchy  ;  and,  therefore, 
that  even  if  the  bed  of  the  sea  elsewhere  belonged  to  the  Crown,  it  had 
passed  from  the  Crown  to  the  duke  in  the  seas  adjacent  to  Cornwall ; 
secondly,  that  the  bed  of  the  sea  did  not  belong  to  the  Crown,  and 
that  the  prince  was  entitled,  as  first  occupier,  to  the  mines  thereunder. 
I  pass  by,  as  not  relevant  to  tlie  present  inquiry,  the  argument  as  to 
the  property  in  the  soil  between  high  and  low  water,  and  I  omit  Sir 
John  Patteson's  decision  on  that  point  in  favor  of  the  Duchy  as  not 
material.     On  the  second  point  he  thus  expressed  himself  :  — 

"  I  am  of  opinion,  and  so  decide,  that  the  right  to  the  minerals 
below  low-water  mark  remains  and  is  vested  in  the  Crown,  although 
those  minerals  may  be  won  by  workings  commenced  above  low-water 
mark  and  extended  below  it." 


SECT.    I.]  KEGINA    V.   KEYX.  23 

And  be  recommended  the  passing  of  an  Act  of  Parliament  to  give 
practical  effect  to  his  decision,  so  far  as  it  was  in  favor  of  the  Crown. 
The  Act  of  Parliament  accordingly  was  passed,  the  21  &  22  Vict. 
c.  109,  a  public  Act.  By  s.  2  it  is  not  merely  enacted,  but  declared 
and  enacted  as  follows  :  — 

"All  mines  and  minerals  lying  below  low-water  mark  under  the 
open  sea  adjacent  to  but  not  being  part  of  the  County  of  Cornwall  are, 
as  between  the  Queen's  Majesty,  in  right  of  her  Crown,  on  the  one 
hand,  and  His  Royal  Highness  Albert  Edward  Prince  of  Wales  and 
Duke  of  Cornwall,  in  right  of  his  Duchy  of  Cornwall,  on  the  other 
hand,  vested  in  Her  Majesty  the  Queen  in  right  of  her  Crown  as  part 
of  the  soil  and  territorial  possessions  of  the  Crown." 

A  subsequent  question  was  raised  as  to  minerals  in  the  beds  of 
estuaries  below  low-water  mark,  but,  so  to  speak,  intra  fauces  Cornu- 
hice ;  and  this  question,  which  arose  after  the  death  of  Sir  John 
Patteson,  w^as  referred  for  decision  to  Sir  John  Coleridge.  This  de- 
cision was  substantially  in  favor  of  the  Prince,  and  the  arguments  in 
the  former  case  were  repealed  before  him  ;  but  as  he  had  to  decide  the 
matter  after  the  passing  of  the  Act  of  Parliament,  and  in  truth  as  to  the 
construction  to  be  placed  upon  its  clauses,  it  is  not  material  to  refer 
in  detail  to  the  words  of  his  judgment  and  award.  It  is  true,  that  the 
particular  question  between  Her  Majesty  and  the  Prince  of  Wales, 
M  hich  arose  in  respect  of  the  bed  of  the  sea  adjacent  to  the  county  of 
Cornwall,  could  not,  as  far  as  I  know,  arise  in  respect  of  the  bed  of 
the  sea  adjacent  to  any  other  county.  But  it  might  well  arise  between 
Her  Majesty  and  private  persons  all  round  the  British  islands.  The  sov- 
ereign stands  in  no  more  peculiar  relation  to  Cornwall  than  she  does  to 
Kent.  There  is  no  reason,  legal  or  otherwise,  as  far  as  I  am  aware, 
why  the  bed  of  the  sea  "  adjacent  to  but  not  part  of  the  county  of 
Cornwall "  should  be,  and  why  the  bed  of  the  sea  adjacent  to,  but  not 
part  of  the  county  of  Kent,  where  tliis  offence  was  committed,  should 
not  be  "  part  of  the  soil  and  territorial  i>ossession  of  the  Crown,"  in 
the  words  of  the  Act  of  Parliament.  Parliament  did  but  a[)ply  to  a 
particular  case,  in  order  to  settle  a  question  between  the  two  highest 
persons  in  the  state,  that  which  is  and  always  has  been  the  law  of  this 
country.  We  have  therefore  it  seems  the  express  and  definite  author- 
ity of  Parliament  for  the  proposition  that  the  realm  does  not  end  witii 
low-water  mark,  but  that  tlie  open  sea  and  the  bed  of  it  are  part  of  liie 
realm  and  of  the  territory  of  the  .sovereign.  If  so  it  follows  that  Brit- 
ish law  is  supreme  over  it,  and  tliat  the  law  must  be  administered  by 
.some  tribunal.  It  cannot,  for  tiie  reasons  assigned  by  my  Brotlier 
l>iti:TT,  be  administered  by  tlie  .Judges  of  OyiT  and  Terminer;  it  can 
be,  and  always  could  l^e,  by  tlie  A(hiiir;ilty,  and  if  liy  the  Admiralty, 
tlien  by  the  Central  Criminal  (.'ourt.  1  do  not  feel  niiicli  pressed  by 
the  undoubted  fact  that  no  record  can  In;  found  of  tin-  exercise  of  this 
particular  authority.  Cases  of  collision  are  not  often  the  subject  of 
criminal  inquiry,  they  do  not  often  liMpin'n  williin  local   limits  so  as  to 


24  WILDENHUS'S   CASE.  [CHAP.    I 

raise  this  particular  question.  If  they  were  cases  of  wanton  violence 
they  would  in  former  days,  1  conceive,  have  been  very  summarily  dis- 
posed of.  Sometimes,  no  doubt,  the  fact  that  a  jurisdiction  has  never 
been  exercised  is  a  strong  argument  against  the  existence  of  the  juris- 
diction ;  but  the  force  of  this  argument  varies  with  circumstances  ; 
and  though  undoubtedly  it  is  a  matter  to  be  considered,  it  does  not,  I 
think,  in  this  case  outweigh  the  arguments  which  establish  its  exist- 
ence. On  the  whole,  therefore,  1  am  of  opinion  on  the  first  point  that 
the  conviction  is  right.  I  am  of  the  same  opinion,  though  with  some 
doubt,  upon  the  second,  that  is,  that  the  offence  was  committed  on 
board  an  English  ship.  If  this  had  been  murder  it  would,  as  I  under- 
stand the  law,  be  clear  that  the  offence  was  so  committed.  I  need  cite 
no  further  authority  than  the  case  of  Reg.  /■.  Armstrong,  13  Cox  Cr. 
C.  184,  decided  in  1875,  by  my  lamented  brother  Archibald.  I  think 
I  follow,  and  I  am  sure  I  feel  the  weight  of,  the  reasoning  which  has 
brought  the  Lord  Chief  Justice  to  the  opposite  conclusion  on  this 
point.  But  on  the  whole,  though  not  without  some  hesitation,  I  concur 
in  the  reasoning  of  my  brother  Denman,  and  I  think  the  same  rule 
should  apply  in  manslaughter  which  applies  in  murder.  And  on  the 
second  point,  therefore,  I  am  of  opinion  that  the  conviction  was  right 
and  should  be  affirmed.^ 


WILDENHUS'S   CASE. 
Supreme  Court  of  the  United  States.     1886. 

[Reported  120  U.  S.\.] 

This  appeal  brought  up  an  application  made  to  the  Circuit  Court  of 
the  United  States  for  the  District  of  New  Jersey,  by  Charles  Mali,  the 
"  Consul  of  His  Majesty  the  King  of  the  Belgians,  for  the  States  of 
New  York  and  New  Jersey,  in  the  United  States,"  for  himself  as  such 
consul,  "and  in  behalf  of  one  Joseph  Wildenhus,  one  Gionviennie 
Gobnbosich,  and  one  John  J.  Ostenmeyer,"  for  the  release,  upon  a 
writ  of  habeas  corpus,  of  Wildenhus,  Gobnbosich,  and  Ostenmeyer 
from  the  custody  of  the  keeper  of  the  common  jail  of  Hudson  County, 
New  Jersey,  and  their  delivery  to  the  consul,  ''to  be  dealt  with 
according  to  the  law  of  Belgium."  The  facts  on  which  the  application 
rested  were  thus  stated  m  the  petition  for  the  writ :  — 

"■  Second.  That  on  or  about  the  sixth  day  of  October,  1886,  on 
board  the  Belgian  steamship  Noordland,  there  occurred  an  atfray  be- 
tween the  said  Joseph  Wildenhus  and  one  Fijens,  wherein  and  whereby 
it  is  charged  tliat  the  said  Wildenhus  stabbed  with  a  knife  and  inflicted 
upon  the  said  Fijens  a  mortal  wound,  of  which  he  afterwards  died. 

"  Third.     That  the  said  Wildenhus  is  a  subject  of  the  Kingdom  of 

1  See  also  Ellis  v.  Mitchell  (Supreme  Court  of  Hong  Kong,  1874),  U.  S.  Foreign 
Relations,  1875,  600,  and  the  accompanying  diplomatic  correspondence.  —  Ed. 


SKCT.    I.]  WILDENHUS'S   CASE.  25 

Belgium  and  has  his  doraicil  therein,  and  is  one  of  the  crew  of  the  said 
steamship  >.'oortllund,  uiui  was  sueli  wlien  the  said  atlVay  occurred. 

"  Fourth.  That  the  said  Fijens  was  also  a  suliject  of  Belgium  and 
had  his  domicil  and  residence  llierein,  and  at  the  time  of  tlie  saiil 
affray,  as  well  as  at  the  time  of  his  subsequent  death,  was  one  of  the 
crew  of  the  said  steamship. 

"  Fifth.  That  at  the  time  said  atfray  occurred  the  said  steamship 
Xoordhmd  was  lying  moored  at  liie  dock  of  the  port  of  Jersc}'  City,  in 
said  State  of  New  Jersey. 

'•  Sixth.  That  the  said  affiay  occurred  and  ended  wholly  below  the 
deck  of  the  said  steamship,  and  that  the  traiKpullity  of  the  said  port  of 
Jersey  City  was  in  nowise  disturbed  or  endangered  thereby. 

"■  Seventh.  That  said  affray  occurred  in  the  presence  of  several 
witnesses  all  of  whom  were  and  still  are  of  the  crew  of  the  said  vessel, 
and  that  no  other  person  or  persons  except  those  of  the  crew  of  said 
vessel  were  present  or  near  by. 

'•  Eighth.  Your  petitioner  therefore  respectfully  shows  unto  this 
honorable  court  that  the  said  affray  occurred  outside  of  the  jurisdiction 
of  the  said  State  of  New  Jersey. 

"•  Ni7ith.  But,  notwithstanding  the  foregoing  facts,  3'our  petitioner 
respectfully  further  shows  that  the  police  authorities  of  Jersey  City,  in 
said  State  of  New  Jersey,  have  arrested  the  said  Joseph  Wildenhus, 
and  also  the  said  Gionviennie  Gobnbosich  and  John  J.  Ostenmeyer,  of 
the  crew  of  the  said  vessel  (one  of  whom  is  a  quartermaster  thereof), 
and  that  said  Joseph  Wildenhus  has  been  committed  b}'  a  police  magis- 
trate, acting  under  the  authority  of  the  said  state,  to  the  common  jail 
of  the  county  of  Hudson,  on  a  charge  of  an  indictable  olTence  under  the 
laws  of  the  said  State  of  New  Jersey,  and  is  now  held  in  confinement 
by  the  keeper  of  the  said  jail,  and  that  the  others  of  the  said  crew 
arrested  as  aforesaid  are  also  detained  in  custody  and  confinement  as 
witnesses  to  testify  in  such  proceedings  as  may  hereafter  be  had  against 
the  said  Wildenhus." 

]Mi{.  Chikk  Jl'stick  Waitic,' after  stating  the  case  as  above  reported, 
delivered  the  opinion  of  the  court. 

By  §§  751  and  75.3  of  the  Revised  Statutes  the  courts  of  the  United 
States  have  power  to  issue  writs  of  habeas  corpus  which  shall  extend  to 
prisoners  in  jail  when  the}'  are  in  "  custody  in  violation  of  the  Constitu- 
tion or  a  law  or  treat}'  of  the  United  States,"  and  the  (piestion  we  have 
to  consider  is,  whether  these  prisoners  are  held  in  violation  of  the  provi- 
sions of  the  existing  treaty  between  the  United  Slates  and  Belgitnn. 

It  is  part  of  the  law  of  civilized  nations  that  wiien  a  merchant  vessel 
of  one  country  enters  the  ports  of  another  for  llic  purposes  of  trade, 
it  subjects  itself  to  the  law  of  tin;  place-  to  which  it  goes,  unless  l)y 
treaty  or  otherwise  the  two  coinitries  iiave  come  to  some  dilfertnt 
understanding  or  agreement;     for,  as  was  s.-dd  by  Chief  .Justice   Mar 

'  '1  lie  arguiiieiits  and  |iiiil  of  ihc  (i|iiijioii  arc-  (iiniuril.        Li>. 


26  WILDENHUS'S   CASE.  [CKAP.   T. 

shall  in  The  Exchange,  7  Cranch,  116,  144,  "  it  would  be  obviously 
inconvenient  and  dangerous  to  society,  and  would  subject  the  laws  to 
continual  infraction,  and  the  government  to  degradation,  if  such  .  .  . 
merchants  did  not  owe  temporary  and  local  allegiance,  and  were  not 
amenable  to  the  jurisdiction  of  the  country."  United  States  v.  Diekel- 
man,  92  U.  S.  520  ;  1  Phillimore's  Int.  Law,  3d  ed.  483,  §  351  ;  Twiss' 
Law  of  Nations  in  Time  of  Peace,  229,  §  159  ;  Creasy's  Int.  Law, 
1G7,  §  176  ;  Halleck's  Int.  Law,  1st  ed.  171.  And  the  EngUsh  judges 
have  uniformly  recognized  the  rights  of  the  courts  of  the  country  of 
which  the  port  is  part  to  punish  crimes  committed  by  one  foreigner  on 
another  in  a  foreign  merchant  ship.  Regina  v.  Cunningham,  Bell  C. 
C.  72  ;  s.  c.  8  Cox  C.  C.  104  ;  Regina  v.  Anderson,  11  Cox  C  C.  198, 
204  ;  s.  c.  L.  R.  1  C.  C.  161,  165  ;  Regina  v.  Keyn,  13  Cox  C.  C.  403, 
486,  525  ;  s.^c.  2  Ex.  Div.  63,  161,  213.  As  the  owner  has  voluntarily 
taken  his  vessel  for  his  own  private  purposes  to  a  place  within  the 
dominion  of  a  government  other  than  his  own,  and  from  which  he 
seeks  protection  during  his  stay,  he  owes  that  government  such  alle- 
giance for  the  time  being  as  is  due  for  the  protection  to  which  he 
becomes  entitled. 

From  experience,  however,  it  was  found  long  ago  that  it  would  be 
beneficial  to  commerce  if  the  local  government  would  abstain  from 
interfering  with  the  internal  discipline  of  the  ship,  and  the  general  regu- 
lation of  the  rights  and  duties  of  the  officers  and  crew  towards  the 
vessel  or  among  themselves.  And  so  by  comity  it  came  to  be  generally 
understood  among  civilized  nations  that  all  matters  of  discipline 
and  all  things  done  on  board  which  affected  only  the  vessel  or  those 
belonging  to  her,  and  did  not  involve  the  peace  or  dignity  of  the 
country,  or  the  tranquillity  of  the  port,  should  be  left  by  the  local  gov- 
ernment to  be  dealt  with  by  the  authorities  of  the  nation  to  which  the 
vessel  belonged  as  the  laws  of  that  nation  or  the  interests  of  its  com- 
merce should  require.  But  if  crimes  are  committed  on  board  of  a  char- 
acter to  disturb  the  peace  and  tranquillity  of  the  country  to  which  the 
vessel  has  been  brought,  the  offenders  have  never  by  comity  or  usage 
been  entitled  to  any  exemption  from  the  operation  of  the  local  laws  for 
their  punishment,  if  the  local  tribunals  see  fit  to  assert  their  authority. 
Such  being  the  general  public  law  on  this  subject,  treaties  and  con- 
ventions have  been  entered  into  by  nations  having  commercial  inter- 
course, tlie  purpose  of  wliich  was  to  settle  and  define  the  rights  and 
duties  of  the  contracting  parties  with  respect  to  each  other  in  these 
particulars,  and  thus  prevent  the  inconvenience  that  might  arise  from 
attempts  to  exercise  conflicting  jurisdictions. 

[The  learned  Chief  Justice  here  stated  the  terms  of  successive  con- 
ventions entered  into  between  the  United  States  and  foreign  nations, 
and  proceeded  :  — ] 

It  thus  appears  that  at  first  provision  was  made  only  for  giving  con- 
suls police  authority  over  the  interior  of  the  ship  and  jurisdiction  in 
civil  matters  arising  out  of  disputes  or  diflTerences  on  board,  that  is  to 


SECT,    l]  WILDEMIUs'ri    CASE.  27 

sa}',  between  those  belonging  to  the  vessel.  Under  this  i>olice  author- 
ity the  duties  of  the  consuls  were  evidently  confined  to  the  mainte- 
nance of  order  and  discipline  on  board.  This  gave  them  no  power  to 
punish  for  crimes  against  the  peace  of  the  country.  In  fact,  they  were 
expressly  prohibited  from  interfering  with  the  local  police  in  matters  of 
that  kind.  The  cases  of  "  The  Sally"  and  "The  Newton  "  (Wheat 
Internat.  Law,  3d  ed.,  153),  are  illustrative  of  this  position.  That  of 
>•  The  Sally"  related  to  the  discii)line  of  the  ship,  and  that  of  "The 
Newton"  to  the  maintenance  of  order  on  board.  In  neither  case  was 
the  disturbance  of  a  character  to  affect  the  peace  or  the  dignity  of  the 
country. 

In  the  next  conventions  consuls  were  simply  made  judges  and  arbi- 
trators to  settle  and  adjust  dirterences  between  those  on  board.  This 
clearly  related  to  such  differences  between  those  belonging  to  the  vessel 
as  are  capable  of  adjustment  and  settlement  by  judicial  decision  or  by 
arbitration,  for  it  simply  made  the  consuls  judges  or  arbitrators  in  such 
matters.  That  would  of  itself  exclude  all  idea  of  punishment  for  crimes 
against  the  State  which  affected  the  peace  and  tranquillity  of  the  port ; 
but,  to  prevent  all  doubt  on  this  sul)ject,  it  was  expressly  provided  that 
it  should  not  apply  to  differences  of  that  character. 

]Sext  came  a  form  of  convention  which  in  terms  gave  the  consuls 
authority  to  cause  proper  order  to  be  maintained  on  board  and  to 
decide  disputes  between  the  officers  and  crew,  but  allowed  the  local 
authorities  to  interfere  if  the  disorders  taking  place  on  board  were  of 
such  a  nature  as  to  disturb  the  public  tranquillity,  and  that  is  sul)stan- 
tially  all  there  is  in  the  convention  with  Belgium  which  we  have  now  to 
consider.  This  treaty  is  the  law  which  now  governs  the  conduct  of  the 
United  States  and  Belgium  towards  each  other  in  this  particular. 
Each  nation  has  granted  to  tlie  other  such  local  jurisdiction  within  its 
own  dominion  as  may  be  necessary  to  maintain  order  on  board  a  mer- 
chant vessel,  but  has  reserved  to  itself  the  right  to  interfere  if  the  dis- 
order on  board  is  of  a  nature  to  disturb  the  public  tranquillity. 

The  treaty  is  part  of  the  supreme  law  of  the  United  States,  and  has 
the  same  force  and  effect  in  New  Jersey  that  it  is  entitled  to  elsewhere. 
If  it  o-ives  the  consul  of  Belgium  exclusive  jurisdiction  over  the  olfencc 
which  it  is  alleged  has  been  committed  within  the  territory  of  New 
Jersey,  we  see  no  reason  why  he  may  not  enforce  his  rigiits  under  the 
treatv  by  writ  of  habeas  corpus  in  any  proper  court  of  tiie  U'nited  States. 
This'being  the  case,  the  only  important  question  left  for  our  determina- 
tion is  whether  the  thing  which  lias  l>een  done  —  tlie  disonU-r  that  has 
arisen  — on  board  this  vessel  is  of  a  nature  to  disturb  tiie  public  peace. 
or,  as  some  writers  term  it,  tiie  "  public  repose"  of  tiic!  i)eople  who  look 
to  the  state  of  New  Jersey  for  their  protection.  If  tlie  thing  done — 
"  the  disorder,"  as  it  is  called  in  tlie  treaty  —  is  of  a  character  to  affect 
tliose  on  shore  or  in  tiie  port  when  it  becomes  known,  tiie  fact  that  only 
those  on  tiie  ship  saw  it  when  it  was  done  is  a  matter  of  no  momeiit. 
Those    wiioarcnoton  tlie  vessel  pav  no   speeial    altriilioii    l<»   tlie    men' 


28  WILDENHUS'S   CASE.  [CHAP.    I. 

disputes  or  quarrels  of  the  seamen  while  on  board,  whether  they  occur 
under  deck  or  above.  Neither  do  they  as  a  rule  care  for  anything  done 
on  board  which  relates  only  to  the  discipline  of  the  ship,  or  to  the  pre- 
servation of  order  and  authority.  Not  so,  however,  with  crimes  which 
from  their  gravity  awaken  a  public  interest  as  soon  as  they  become 
known,  and  especially  those  of  a  character  which  every  civilized  nation 
considers  itself  bound  to  provide  a  severe  punishment  for  when  com- 
mitted within  its  own  jurisdiction.  In  such  cases  inquiry  is  certain  to 
be  instituted  at  once  to  ascertain  how  or  why  the  thing  was  done,  and 
the  popular  excitement  rises  or  falls  as  the  news  spreads  and  the  facts 
become  known.  It  is  not  alone  the  publicity  of  the  act,  or  the  noise 
and  clamor  which  attends  it,  that  fixes  the  nature  of  the  crime,  but  the 
act  itself.  If  that  is  of  a  character  to  awaken  public  interest  when  it 
becomes  known,  it  is  a  "  disorder  "  the  nature  of  which  is  to  affect  the 
community  at  large,  and  consequentl}'  to  invoke  the  power  of  the  local 
government  whose  people  have  been  disturbed  by  what  was  done. 
The  very  nature  of  such  an  act  is  to  disturb  the  quiet  of  a  peaceful 
community,  and  to  create,  in  the  language  of  the  treaty,  a  "•disorder" 
which  will  ^  disturb  tranquillity  and  public  order  on  shore  or  in  tlic 
port."  The  principle  which  governs  the  whole  matter  is  this  :  Dis- 
orders which  disturb  only  the  peace  of  the  ship  or  those  on  board  are 
to  be  dealt  with  exclusively  by  the  sovereignty  of  the  home  of  the  ship, 
but  those  which  disturb  the  public  peace  may  be  suppressed,  and,  if 
need  be,  the  offenders  punished  by  the  proper  authorities  of  the  local 
jurisdiction.  It  may  not  be  ea.sy  at  all  times  to  determine  to  which  of 
the  two  jurisdictions  a  particular  act  of  disorder  belongs.  Much  will  un- 
doubtedl}'  depend  on  the  attending  circumstances  of  the  particular  case, 
but  all  must  concede  that  felonious  homicide  is  a  subject  for  the  local 
jurisdiction,  and  that  if  the  proper  authorities  are  proceeding  with  the 
case  in  a  regular  way,  the  consul  has  no  right  to  interfere  to  prevent  it. 
That,  according  to  the  petition  for  the  habeas  corpus,  is  this  case. 

This  is  fully  in  accord  with  the  practice  in  France,  where  the  govern- 
ment has  been  quite  as  liberal  towards  foreign  nations  in  this  particular 
as  any  other,  and  where,  as  we  have  seen  in  the  cases  of  "  The  Sally  " 
and  "  The  Newton,"  by  a  decree  of  the  Council  of  State,  representing 
the  political  department  of  the  government,  the  French  courts  were  pre- 
vented from  exercising  jurisdiction.  But  afterwards,  in  1859,  in  the 
case  of  Jally,  the  mate  of  an  American  merchantman,  who  had  killed 
one  of  the  crew  and  severely  wounded  another  on  board  the  ship  in  the 
port  of  Havre,  the  Court  of  Cassation,  the  highest  judicial  tribunal  of 
France,  upon  full  consideration  held,  while  the  Convention  of  1853  was 
in  force,  that  the  French  courts  liad  rightful  jurisdiction,  for  reasons 
which  sufficiently  appear  In  the  following  extract  from  its  judgment : 

"  Considering  that  it  is  a  principle  of  the  law  of  nations  that  every 
state  has  sovereign  jurisdiction  throughout  its  territory  ; 

"  Considering  that  by  the  terms  of  Article  3  of  the  Code  Napoleon 
the  laws  of  police  and  safety  bind  all  those  who  inhabit  French  territory, 


SECT   I.]  COMMONWEALTH    V.    MANCHESTER,  29 

and   that   consequently   foreigners,  even  transeufttes,  find  themselves 
subject  to  those  laws  ; 

••  Considering  that  mercliant  vessels  entering  the  i)ort  of  a  nation 
other  than  that  to  which  they  belong  cannot  be  witlidrawn  from  llie 
territorial  jurisdiction,  in  any  case  in  which  the  interest  of  the  state  of 
■which  that  port  forms  part  finds  itself  concerned,  without  danger  to 
good  order  and  to  the  dignity  of  the  government ; 

"  Considering  that  every  state  is  interested  in  the  repression  of 
crimes  and  offences  that  may  be  committed  in  the  ports  of  its  territory, 
not  only  by  the  men  of  the  ship's  company  of  a  foreign  merchant  vessel 
towards  men  not  forming  part  of  that  company,  but  even  by  men  of  the 
ship's  company  among  themselves,  whenever  the  act  is  of  a  nature  to 
compromise  tlie  tranquillity  of  the  port,  or  the  intervention  of  the  local 
authority  is  involved,  or  the  act  constitutes  a  crime  by  common  law  " 
{droit  commun,  the  law  common  to  all  civilized  nations),  ''  the  gravity 
of  which  does  not  permit  any  nation  to  leave  it  unpunished,  without 
impugning  its  rights  of  jurisdictional  and  territorial  sovereignty, 
because  that  crime  is  in  itself  tlie  most  manifest  as  well  as  the  most 
flagrant  violation  of  the  laws  which  it  is  the  duty  of  every  nation  to 
cause  to  be  respected  in  all  parts  of  its  territory."  1  Ortolan  Dii)lo- 
matie  de  la  Mer  (4th  ed.),  PP-  455,  456  :  Sirey  (K  S.),  1859,  p.  189. 
The  judgment  of  the  Circuit  Court  is  affirmed.^ 


COMMONWEALTH  v.  MANCHESTER. 
Supreme  Judicial  Court  of  Massachusetts.     1890. 

[Reported  152  Mass.  230.] 

Complaint  on  the  St.  of  1886,  c.  192,  §  1,  charging  that  the 
defendant,  while  commorant  of  Falmouth,  in  the  county  of  liarnstal)le, 
at  Falmouth,  on  July  19,  1889,  "  did  then  and  there  draw,  set,  stretch, 
and  use  a  purse  seine  for  tlie  taking  of  fish  in  the  waters  of  IJuzzard's 
Bay,  within  the  jurisdiction  of  this  Commonwealth." 

Trial  in  the  Superior  Court,  before  Sherman,  J.,  who,  after  a  verdict 
of  guiltv,  reported  the  case  for  the  detcrMiination  of  this  court,  in 
substance  as  follows. 

The  evidence  introduced  by  the  govcinment  tended  to  siiow  that  thv 
defendant  and  others,  who  were  citizens  of  Kiiode  island,  and  were 
officers  and  crew  of  the  fishing  steamer  "A.  T.  Serrell,"  on  the  day 
alleged,  were  engaged  in  drawing,  setting,  stretching,  and  using  a  purse 

1  For  cases  illustratitif?  the  peculiar  (|iicsti()iiH  of  juriHclii-lioii  arising  bftwocii  tlic 
Btate  an.l  the  I'liitn.!  States  courts,  hoc  Tennessee  r.  Davis,  1()(»  \' .  S  2.'>7  ;  In  re  Coy, 
127    r.  S.   7.31-    III  re  Neagle,  I'Jj    1.8.  1;   Manchester   i'.   .Miissacliusetts,    L'J'J   U.  S 


30  COMMONWEALTH   V.   MANCHESTER.  [cHAP.    L 

seine  for  the  taking  of  fish  in  the  waters  of  Buzzard's  Bay  ;  that  the 
place  where  the  defendant  and  the  others  were  so  engaged  was  about, 
and  not  exceeding,  one  mile  and  a  quarter  from  a  point  on  the  shore 
midway  from  the  north  line  of  the  town  of  Falmouth  to  the  south  line 
thereof;  that  the  point  where  they  were  so  using  said  seine  was  within 
tliat  part  of  Buzzard's  Bay  which  the  Harbor  and  Land  Commissioners, 
acting  under  the  provisions  of  section  2  of  chapter  196  of  the  Acts  of 
the  year  1881,  had,  so  far  as  they  were  capable  of  doing  so,  assigned 
to  and  made  a  part  of  the  town  of  Falmouth  ;  that  the  defendant  and 
his  associates,  on  that  day  and  at  that  place,  caught  with  a  seine  a 
large  quantity  of  the  fish  called  menhaden  ;  that  in  so  doing  no  fixed 
apparatus  was  used,  and  the  bottom  of  the  sea  was  not  encroached 
upon  or  disturbed  ;  that  the  distance  between  the  headlands  at  the 
mouth  of  Buzzard's  Bay,  viz.  at  Westport  in  the  county  of  Bristol  on 
the  one  side,  and  the  island  of  Cuttyhunk,  the  most  southerly  of  the 
chain  of  islands  lying  to  the  eastward  of  Buzzard's  Bay,  and  known  as 
the  Elizabeth  Islands,  in  the  county  of  Dukes  County,  on  the  other  side, 
was  more  than  one  and  less  than  two  marine  leagues  ;  and  that  the 
distance  across  said  bay  at  the  point  where  the  acts  of  the  defendant 
were  done  is  more  than  two  marine  leagues,  and  the  opposite  points 
are  in  different  counties. 

The  defendant  did  not  dispute  any  of  the  evidence  offered  by  the 
government,  but  introduced  evidence  tending  to  show  that  it  was 
impossible  to  discern  objects  across  from  one  headland  to  the  other  at 
the  mouth  of  Buzzard's  Bay  ;  that  the  steamer  was  of  Newport,  Rhode 
Island,  duly  enrolled  and  licensed  at  that  port  under  the  laws  of  the 
United  States  for  carrying  on  the  menhaden  fishery ;  that  he  was  in 
the  employ  of  a  firm  engaged  in  the  State  of  Rhode  Island  in  the  busi- 
ness of  seining  menhaden  to  be  sold  for  bait,  and  to  be  manufactured 
into  fish  oil  and  fertilizer  ;  that  he  was  engaged  in  fishing  for  menhaden 
only,  and  caught  no  other  fish ;  that  menhaden  is  not  a  food  fish,  and 
is  only  valuable  for  the  purpose  of  bait  and  the  manufacture  of  fish  oil 
and  fertilizer ;  and  that  the  taking  of  menhaden  by  seining  does  not 
tend  in  any  way  to  decrease  the  quantity  and  variety  of  food  fishes. 

It  was  conceded  by  the  government  that  the  defendant  was  em- 
ployed upon  the  vessel  described  by  the  enrolment  and  license,  and  at 
the  time  of  the  commission  of  the  acts  complained  of  he  and  his  asso- 
ciates were  so  in  the  employ  of  the  vessel  described  in  the  license ;  and 
that  the  defendant  could  not  be  convicted  if  the  St.  of  1865,  c.  212, 
was  not  repealed  by  the  St.  of  1886,  c.  192. 

The  defendant  asked  the  judge  to  rule,  that,  notwithstanding  the  St. 
of  1886,  c.  192,  he  was  authorized  to  take  menhaden  bj'  the  use  of  the 
purse  seine  in  the  waters  of  Buzzard's  Bay  in  the  place  where  this  act 
was  committed  ;  tliat  that  statute  did  not  repeal  the  St.  of  1865,  c.  212  ; 
that  the  defendant  might  lawfully  take  menhaden  b}'  the  use  of  the 
purse  seine  in  Buzzard's  Ba}^,  in  the  place  where  the  acts  complained 
of  were  done ;  that  the  act  complained  of  was  on  the  high  seas  and 


SKCT.    I.l  COMMONWEALTH    V.    MANCHESTER.  31 

without  the  iurisdiction  of  Massachusetts,  and  having  been  done  under 
a  United  States  license  for  carrying  on  this  fisher}-,  the  defendant  could 
not  be  held  as  a  criminal  for  violating  a  statute  of  this  Commonwealth  ; 
that  the  defendant  could  not  be  held  unless  the  act  complained  of  was 
done  and  committed  within  the  body  of  a  county  as  understood  at 
common  law  ;  that  the  statute  of  this  Commonwealth  prohibiting  under 
a  penalty  the  use  of  nets  and  seines,  and  the  taking  of  fish  within  three 
miles  of  the  shore,  was  invalid,  cspeciall}'  as  against  a  license  to 
fish  granted  under  the  laws  of  the  United  States;  and  that  on  all  the 
evidence  the  defendant  could  not  be  convicted. 

The  judge  declined  so  to  rule,  and  instructed  the  jur}'  that  the  St.  of 
I860,  c.  212,  was  repealed  by  the  St.  of  1886,  c.  192  ;  that  if  they 
found  that  the  defendant  was  engaged  in  using  a  purse  seine  for  the 
taking  of  fish  of  any  kind  in  that  part  of  Buzzard's  Bay  which  was 
within  the  jurisdiction  of  the  Commonwealth  of  Massachusetts,  they 
would  be  authorized  to  convict  the  defendant ;  and  that  the  place 
where  the  acts  of  the  defendant  were  committed,  being  within  a  marine 
league  from  the  shore  at  low-water  mark,  was  within  the  jurisdiction 
of  the  Commonwealth. 

G.  A.  King  &  J.  F.  Jackson^  for  the  defendant. 

H.  C.  Bliss,  First  Assistant  Attorney- General,  for  the  Common- 
wealth. 

Field,  C.  J.  The  defendant  was  complained  of  for  taking  fish  by 
the  use  of  a  purse  seine  in  the  waters  of  Buzzard's  Bay,  within  the 
jurisdiction  of  this  Commonwealth.  It  appears  by  the  report,  that  the 
point  in  Buzzard's  Bay  where  the  seine  was  used  "  was  within  that  part 
of  Buzzard's  Bay  which  the  Harbor  and  Land  Commissioners,  acting 
under  the  provisions  of  section  2  of  chapter  196  of  the  Acts  of  the 
vear  1881,  had,  so  far  as  thev  were  capable  of  doing  so,  assigned  to 
and  made  a  part  of  the  town  of  Falmouth"  ;  that  the  distance  between 
the  headlands  at  the  moutli  of  lUizzard's  Ba}'  is  "  more  than  one  and 
less  than  two  marine  leagues;"  and  that  "the  distance  across  said 
ba}'  at  the  point  where  the  acts  of  the  defendant  were  done  is  more 
than  two  marine  leagues,  and  the  opposite  points  are  in  different 
counties."  The  place  "was  about,  and  not  exceeding,  one  mile  and 
a  quarter  from  a  point  on  the  shore  midway  from  the  north  line  of  the 
town  of  Falmouth  to  the  south  line  "  of  said  town.  Buzzard's  Bay  lies 
wholly  within  the  territor}'  of  Massachusetts,  having  Barnstable  County 
on  the  one  side,  and  the  counties  of  Bristol  and  I'lymouth  on  the  other. 
The  defendant  offered  evidence  that  hn  was  fishing  for  menhaden  only, 
with  a  purse  seine,  and  that  the  bottom  of  the  sea  "  was  not  encroached 
upon  or  disturbed,"  and  that  "  it  was  impossible  to  discern  objects 
across  from  one  headland  to  tiie  otlier  at  llie  mouth  of  BiizzmhI's  Bay  ;  '' 
tliat  he  was  a  citizen  of  the  State  of  Hliode  Island,  and  tli;il  llie  vessel 
U()on  which  he  was  employed,  and  in  coiineclion  with  which  he  was 
using  the  seine,  belonged  to  Newport,  in  that  State,  and  iiad  l)een 
"duly  enrolled  and  licensed  at  tli:it  port  under  tiie  laws  of  the  United 
States  for  carrying  on  the  menhaden  fishery.  ' 


32  COMMONWEALTH    V.    MANCHESTER.  [cHAP.    I. 

It  was  contended  at  the  trial,  among  other  things,  that  the  St.  of 
1886,  c.  192,  under  which  the  complaint  was  made,  had  not  repealed 
the  St.  of  1865,  c.  212  ;  but  this  has  not  been  argued  in  this  court.  It 
is  plain  that  the  St.  of  1886,  c.  192,  was  intended  to  regulate  the 
whole  subject  of  using  nets  or  seines  for  taking  fish  in  the  waters  of 
Buzzard's  Ba}-,  and  that  by  implication  it  repealed  the  St.  of  1865, 
c.  212,  so  far  as  that  statute  related  to  the  taking  of  menhaden  by  the 
use  of  a  purse  seine  in  the  waters  of  that  ba}'.  The  principal  question 
argued  here  is,  whether  the  place  where  the  acts  of  the  defendant  were 
done  was  within  the  jurisdiction  of  the  Commonwealth  of  Massa- 
chusetts. 

The  Pub.  Sts.  c.  1,  §§  1,  2,  are  as  follows:  "Section  1.  The  terri- 
torial limits  of  this  Commonwealth  extend  one  marine  league  from  its 
sea-shore  at  low-water  mark.  When  an  inlet  or  arm  of  the  sea  does 
not  exceed  two  marine  leagues  in  width  between  its  headlands,  a 
straight  line  from  one  headland  to  the  other  is  equivalent  to  the  shore 
line.  Section  2.  The  sovereigntj'  and  jurisdiction  of  the  Common- 
wealth extend  to  all  places  within  the  boundaries  thereof;  subject  to 
the  rights  of  concurrent  jurisdiction  granted  over  places  ceded  to  the 
United  States."  The  Pub.  Sts.  c.  22,  §  1,  contain  the  following  pro- 
vision :  ''The  boundaries  of  counties  bordering  on  the  sea  shall  extend 
to  the  line  of  the  Commonwealth,  as  defined  in  section  one  of  chapter 
one."  Section  11  of  the  same  chapter  is  as  follows  :  "The  jurisdiction 
of  counties  separated  by  waters  within  the  jurisdiction  of  the  Common- 
wealth shall  be  concurrent  upon  and  over  such  waters."  The  St.  of 
1881,  c.  196,  which  has  been  referred  to,  is  as  follows:  "Section  1. 
The  boundaries  of  cities  and  towns  bordering  upon  the  sea  shall  extend 
to  the  line  of  the  Commonwealth,  as  the  same  is  defined  in  section  one 
of  chapter  one  of  the  General  Statutes.  Section  2.  The  Harbor  and 
Land  Commissioners  shall  locate  and  define  the  courses  of  the  boundary 
lines  between  adjacent  cities  and  towns  bordering  upon  the  sea,  and 
upon  arms  of  the  sea,  from  high-water  mark  outward  to  the  line  of  the 
Commonwealth,  as  defined  in  said  section  one,  so  that  the  same  shall 
conform  as  nearly  as  may  be  to  the  course  of  the  boundary  lines 
between  said  adjacent  cities  and  towns  on  the  land  ;  and  they  shall  file 
a  report  of  their  doings,  with  suitable  plans  and  exhibits,  showing  the 
boundary  lines  of  any  town  by  them  located  and  defined,  in  the  registry 
of  deeds  in  which  deeds  of  real  estate  situated  in  such  town  are  required 
to  be  recorded,  and  also  in  the  oflffce  of  the  Secretary  of  the  Common- 
wealth." Sections  1  and  2  of  chapter  1  of  the  General  Statutes  contain 
the  provisions  which  have  been  before  recited,  as  now  contained  in  the 
Pub.  Sts.  c.  1,  §§  1,  2,  and  c.  22,  §§1,11.  These  provisions  were  first 
enacted  by  the  St.  of  1859,  c.  289.  Section  1  of  the  Rev.  Sts.  c.  1,  was 
as  follows :  "  The  sovereignty  and  jurisdiction  of  the  Commonwealth 
extend  to  all  places  within  the  boundaries  thereof;  subject  only  to  such 
rights  of  concurrent  jurisdiction  as  have  been  or  may  be  granted  over 
any  places  ceded  by  the  Commonwealth  to  the  United  States."     The 


SECT.    I.]  COMMONWEALTH   V.    MANCHESTER.  33 

boundaries  of  the  Commonwealth  on  the  sea  were  first  exactly  defined 
by  the  St.  of  1859,  c.  289.  The  boundaries  of  tiie  territory  granted  by 
the  cliarter  of  the  Colony  of  New  Plymouth,  or  of  the  territory  included 
in  the  Province  Cliarter,  need  not  be  particularly  set  forth.  lUizzard's 
Bay  was  undoubtedly  within  the  territory  described  in  those  charti-rs. 

By  the  definitive  treaty  of  peace  between  the  rniletl  States  of 
America  and  Great  Britain,  "  His  Britannic  Majesty  acknowledges  the 
said  United  States,  viz.  New  Hampshire,  Massachusetts  Bay,  ...  to 
be  free,  sovereign,  and  independent  States;  that  he  treats  with  them  as 
such  ;  and  for  himself,  his  heirs  and  successors,  relinquishes  all  claims 
to  the  government,  propriety,  and  territorial  rights  of  tlie  same,  and 
every  part  thereof."  8  U.  S.  Sts.  at  Large,  81.  If  Massachusetts  had 
become  an  independent  nation,  there  can  be  no  doubt,  we  think,  that 
her  boundaries  on  the  sea,  as  she  has  defined  them  by  the  statutes, 
would  be  •  acknowledged  b}' all  foreign  nations,  and  that  her  right  to 
control  the  fisheries  within  these  boundaries  would  be  conceded.  It 
has  often  been  a  matter  of  controversy  how  far  a  nation  has  a  right  to 
control  the  fisheries  on  its  sea-coast,  and  in  the  bays  and  arms  of  the 
sea  within  its  territory  ;  but  the  limits  of  this  right  have  never  been 
placed  at  less  than  a  marine  league  from  the  coast  on  the  open  sea  ; 
9.\\d  bays  wholly  within  the  territory  of  a  nation,  the  headlands  of  which 
are  not  more  than  six  geographical  miles  apart,  have  always  been 
regarded  as  a  part  of  the  territory  of  the  nation  in  which  they  lie. 
More  extensive  rights  in  these  respects  have  been  and  are  now  claimed 
by  some  nations  ;  but,  so  far  as  we  are  aware,  all  nations  concede  to 
each  other  the  right  to  control  the  fisheries  within  a  marine  league  of 
the  coast,  and  in  bays  within  the  territory  the  headlands  of  which  are 
not  more  than  two  marine  leagues  apart. 

In  the  proceedings  of  the  Halifax  Commission,  under  the  Treat}'  of 
Washington  of  May  8,  1871,  where  it  was  for  the  interests  of  the 
United  States  to  claim  against  Great  Britain,  independently  of  treaties, 
as  extensive  rights  of  fishing  as  could  be  maintained,  the  claim  was 
stated,  in  the  answer  on  behalf  of  the  United  States,  as  follows  :  "  It 
becomes  necessary  at  the  outset  to  inquire  what  rights  American  fish- 
ermen, and  those  of  other  nations,  possess,  independently  of  treaty, 
upon  the  ground  that  the  sea  is  the  common  property  of  all  mankind. 
For  the  purposes  of  fishing,  the  territorial  waters  of  every  country 
along  the  sea-coast  extend  three  miles  from  low-water  mark  ;  and 
beyond  is  the  open  ocean,  free  to  all.  In  the  case  of  bays  and  gulls, 
such  only  are  territorial  waters  as  do  not  exceed  six  miles  in  width 
at  the  mouth  upon  a  straight  line  nieasmcd  from  headland  to  head- 
land. All  larger  bodies  of  water  coMncctcd  with  tlie  open  sea  form 
a  part  of  it.  And  whenever  the  mouth  of  a  l)ay,  gulf,  or  inlet  exceeds 
the  maximum  width  of  six  miles  at  its  mouth,  and  so  loses  the  character 
of  territorial  or  inland  waters,  the  jurisdictional  or  proprietary  line  for 
the  purpose  of  excluding  foreigners  from  fishing  is  measured  along  the 
shore  of  the  bay  according  to  its  sinuosities,  and  the  limit  of  exclusion 


34  COMMONWEALTH    V.   MANCHESTER.  [CHAP.    I, 

IS  three  miles  from  low-water  mark."  Documents  and  Proceedings  of 
'die  Halifax  Commission  (Wasliington,  1878),  Vol.  I.  p.  120  (45th 
Cong.  2d  Sess.,  H.  R.  Ex.  Doc,  No.  89).  The  government  of  Canada 
had  been  instructed  by  the  government  of  Great  Britain,  on  April  12, 
1866,  "that  American  fishermen  should  nut  be  interfered  with,  either 
by  notice  or  otherwise,  unless  found  within  thi-ee  miles  of  the  shore, 
or  within  three  miles  of  a  line  drawn  across  the  mouth  of  a  ba}'  or 
creek  which  is  less  than  ten  geographical  miles  in  width,  in  conforuiit}- 
with  the  arrangement  made  with  France  in  1839  ; "  but  afterwards  the 
British  government  issued  instructions  "•  that  the  United  States  fish- 
ermen will  not  be  for  the  present  prevented  from  fishing,  except  within 
three  miles  of  land,  or  in  bays  which  are  less  than  six  miles  broad  at 
the  mouth."  Vol.  I.  pp.  120,  121,  It  is  true  that  Mr.  Dana,  of  counsel 
for  the  United  States,  contended,  in  argument  with  reference  to  the 
light  to  fish  in  the  open  sea,  "that  the  deep-sea  fisherman,  pursuing 
tlie  free-swimming  fish  of  the  ocean  with  his  net  or  his  leaded  line,  not 
touching  shores  or  troubling  the  bottom  of  the  sea,  is  no  trespasser, 
though  he  approach  within  three  miles  of  a  coast,  by  any  established 
recognized  law  of  all  nations."  Vol.  II.  p.  1G54.  This  contention, 
however,  did  not  touch  the  right  to  fish  in  bays  or  arms  of  the  sea,  and 
it  was  not  the  claim  actually  made  b}'  the  United  States  before  the» 
Commission.  This  is  stated  in  the  answer  and  in  the  brief  of  the 
United  States.  The  answer  does  not  allude  to  any  such  position  as 
that  taken  by  Mr.  Dana  in  his  closing  argument,  but  in  the  brief  it  is 
said:  "Many  authorities  maintain  that  whenever,  under  the  law  of 
nations,  any  part  of  the  sea  is  free  for  navigation,  it  is  likewise  free 
for  fishing  by  those  who  sail  over  its  surface.  But,  without  insisting 
upon  this  position,  the  inevitable  conclusion  is,  that  prior  to  the 
Treaty  of  Washington  the  fishermen  of  the  United  States,  as  well  as 
those  of  all  other  nations,  could  rightfully  fish  in  the  open  sea  more 
than  three  miles  from  the  coast,  and  could  also  fish  at  the  same 
distance  from  the  shore  in  all  bays  more  than  six  miles  in  width, 
measured  in  a  straight  line  from  headland  to  headland."  Vol.  I.  p.  166. 
The  counsel  for  the  defendant  in  the  case  at  bar  place  much  reliance 
upon  the  decision  in  The  Queen  v.  Keyn,  2  Ex.  D.  63.  In  that  case, 
the  defendant  was  the  oflficer  in  command  of  the  "  Franconia,"  a  Ger- 
man steamer,  which,  at  a  point  "  one  mile  and  nine  tenths  of  a  mile 
S.  S.  E.  from  Dover  pier-head,  and  within  two  and  a  half  miles  from 
Dover  beach,"  in  the  English  Channel,  ran  down  and  sank  the  British 
steamer  "  Strathclyde,"  and  one  of  the  "  Strathclydc's "  passengers 
was  drowned.  The  defendant  was  indicted  in  the  Central  Criminal 
Court  for  manslaughter.  The  question  was  whether  the  offence  was 
committed  within  the  jurisdiction  of  the  admiralty,  the  Central  Crimnial 
Court  having  jurisdiction  to  hear  and  determine  anj'  offence  alleged 
"  to  have  been  committed  on  the  high  seas  or  other  places  within  the 
jurisdiction  of  the  Admiralty  of  England"  (p.  100).  A  majority  of  the 
court  held  that  the  offence  was  committed  on  the  German    steamer, 


«ECT.    ].]  COMMONWEALTH    V.   MANCHESTER.  35 

and  not  on  the  British  steamer ;  anil  that,  under  the  laws  thoh  exist- 
ing, there  was  no  admiralty-  jurisdietion  over  an  offence  committed  by 
a  foreigner  on  a  foreign  ship  on  the  open  sea,  whether  within  or 
without  a  marine  league  from  tlie  shore  of  P^ngland.  In  consequence 
of  this  decision,  Parluimeut  passed  the  8t.  of  41  and  42  Vict.  c.  73. 
By  that  Act  it  was  ileclared  that,  "  for  the  purpose  of  any  offence 
declared  by  this  Act  to  be  witliiu  the  jurisdiction  of  the  Admiral,  any 
part  of  the  open  sea  within  one  marine  league  of  the  coast,  measured 
from  low-water  mark,  shall  be  deemed  to  be  open  sea  within  the  terri- 
torial waters  of  Her  Majesty's  dominions." 

It  is  obvious  that  by  this  ilecision  tlie  court  did  not  attempt  to 
deflne  the  extent  of  the  douiinion  of  Great  Britain  over  the  open  sea 
adjacent  to  the  coast,  but  only  the  extent  of  the  existing  admiralty 
jurisdiction  over  offences  committed  on  the  open  sea.  The  courts  of 
England  would  undoubtedly  enforce  any  Act  of  Parliament  conferring 
upon  them  jurisdiction  over  offences  committed  anywhere.  It  is 
equally  obvious  that  the  decision  has  notliing  to  do  with  the  right  of 
control  over  fisheries  in  the  open  sea,  or  in  bays  or  arms  of  the  sea. 
The  case  contains  a  great  deal  of  learning  upon  the  respective  limits 
of  the  common-law  jurisdiction  and  of  the  admiralty  jurisdiction  in 
England  over  crimes,  and  upon  tlie  boundaries  of  counties  lu  England 
under  the  laws  then  existing.  These  distinctions  are  immaterial  in  the 
case  at  bar,  except  with  reference  to  the  contention  that  the  place 
where  the  acts  comi)lained  of  were  done  was  within  the  admiralt}' 
jurisdiction  of  the  courts  of  the  United  States.  The  boundaries  of 
counties  in  Massachusetts  may  be  defined  bv  statute,  and  they  may  be 
made  to  extend  over  all  the  territory  of  Massachusetts,  whether  it  be 
sea  or  land  ;  and,  if  Massachusetts  has  a  right  to  control  the  fisheries 
in  Buzzard's  Bay,  offences  in  violation  of  the  regulations  which  the 
State  may  establish  can  be  tried  in  any  of  its  courts  upon  which  it  may 
confer  jurisdiction.  It  is  to  be  noticed,  however,  that  in  all  the  cita- 
tions contained  in  the  different  opinions  given  in  The  Queen  v.  Keyn, 
wherever  the  question  of  the  right  of  fisher^'  is  referred  to,  it  is  con- 
ceded that  the  control  to  the  extent  at  least  of  a  marine  league  belongs 
to  the  nation  on  whose  coast  the  fisheries  are.  The  argument  of  Mr. 
Benjamin,  of  counsel  for  the  defendant,  is  not  contained  in  the  report 
of  the  case;  but  from  the  statement  of  Mr.  Justice  Lindley,  found  on 
page  90  of  the  report,  it  seems  that  he  admitted  that  the  dominion  of 
a  State  over  the  seas  adjoining  its  shore  existed  for  the  purpose  of 
protecting  "  its  coasts  from  the  effects  of  hostilities  between  other 
nations  which  may  be  at  war,  the  protection  of  its  revenue  and  of  its 
fisheries,  and  the  preservation  of  order  by  its  police.'' 

In  Direct  United  States  Calile  (>o.  r.  Anglo-American  Telegraph  Co. 
2  App.  Cas.  394,  it  became  necessary  for  the  I'rivy  Council  to  deter- 
mine whether  a  point  in  Conception  Bay,  Newfoundland,  more  th:in 
three  miles  from  tin;  shore,  was  a  part  of  the  territory  of  Newfound- 
land, and  within  the  jurisdiction  of  its  legislature.     It  api)eaied  that 


36  COMMONWEALTH   V.   MANCHESTER.  [CHAP.    I. 

the  average  width  of  the  bay  "  is  about  fifteen  miles,"  and  the  distance 
between  the  headlands  is  "  rather  more  tlian  twenty  miles."  Lord 
Blackburn,  in  delivering  the  opinion,  says,  at  page  416  :  "  The  question 
raised  in  this  case,  and  to  which  their  Lordships  confine  their  judg- 
ment, Is  as  to  the  territorial  dominion  over  a  bay  of  configuration  and 
dimensions  such  as  those  of  Conception  Bay  above  described.  The 
few  EngUsh  common-law  authorities  on  this  point  relate  to  tlie  question 
as  to  where  the  boundary  of  counties  ends,  and  the  exclusive  jurisdic- 
tion at  common  law  of  the  Court  of  Admiralty-  begins,  which  is  not 
precisely  the  same  question  as  that  under  consideration  ;  but  this  much 
is  obvious,  that  when  it  is  decided  that  any  bay  or  estuary  of  any 
particular  dimensions  is  or  may  be  a  part  of  an  English  county,  and 
so  completely  within  the  realm  of  England,  it  is  decided  that  a  similar 
bay  or  estuary  is  or  may  be  part  of  the  territorial  dominions  of  the 
country  possessing  the  adjacent  shore.''  He  quotes,  at  page  417,  the 
well-known  language  of  Lord  Hale :  "  That  arm  or  branch  of  the  sea 
whicli  lies  within  the  fauces  terrm^  where  a  man  may  reasonably 
discerne  between  shore,  is,  or  at  least  may  be,  within  the  body  of  a 
county,  and  therefore  within  the  jurisdiction  of  the  sheriff  or  coroner," 
and  comments  upon  its  indefiniteness ;  and  then  cites  the  case  of 
Regina  v.  Cunningham,  Bell,  C.  C.  72,  86,  and  says,  at  page  419,  that 
in  this  case,  "  this  much  was  determined,  that  a  place  in  the  sea,  out 
of  any  river,  and  where  the  sea  was  more  than  ten  miles  wide,  was 
within  the  count}'  of  Glamorgan,  and  consequently,  in  ever}'  sense  of 
the  words,  within  the  territory  of  Great  Britain."  Apparently  he  was 
of  opinion  that,  by  most  of  the  text-writers  on  international  law,  Con- 
ception Bay  would  be  excluded  from  the  territory  of  Newfoundland, 
and  the  part  of  the  Bristol  Channel  which  in  Regina  v.  Cunningham 
was  decided  to  be  in  the  county  of  Glamorgan  would  be  excluded  from 
the  territory  of  Great  Britain  ;  but  he  decides  that  Conception  Bay  is 
a  part  of  the  territory  of  Newfoundland,  because  the  British  govern- 
ment has  exercised  exclusive  dominion  over  it,  with  the  acquiescer;ce 
of  other  nations,  and  it  has  been  declared  by  Act  of  Parliament  "  to  be 
part  of  the  British  territory,  and  part  of  the  country  made  subject  to 
the  Legislature  of  Newfoundland." 

We  regard  it  as  established  that,  as  between  nations,  the  minimum 
limit  of  the  territorial  jurisdiction  of  a  nation  over  tide  waters  is  a 
marine  league  from  its  coast,  and  that  ba}  s  wholly  within  its  territory 
not  exceeding  two  marine  leagues  in  width  at  the  mouth  are  within  this 
limit,  and  that  included  in  this  territorial  jurisdiction  is  the  right  of 
control  over  fisheries,  whether  the  fish  be  migratory,  free-swimming 
fish,  or  free- moving  fish  like  lobsters,  or  fish  attached  to  or  imbedded 
in  the  soil.  The  open  sea  within  this  limit  is  of  course  subject  to  the 
common  right  of  navigation  ;  and  all  governments,  for  the  purpose  of 
self-protection  in  time  of  war,  or  for  the  prevention  of  frauds  on  the 
revenue,  exercise  an  authority  beyond  this  limit.  We  have  no  doubt 
that  the  British  Crown  will  claim  the  ownership  of  the  soil  in  the  bays 


SECT.  I.]      DIRECT  V.  S.  CABLE  CO.  V.  ANGLO-AMERICAN  TELEG.  CO.      37 

and  in  the  open  sea  adjacent  to  the  coast  of  Great  Britain,  to  at  least 
tliis  extent,  whenever  there  is  any  occasion  to  determine  the  ownership. 
The  authorities  are  collected  in  Gould  on  Waters,  Part  I.  cc.  1,  2,  and 
notes.  See  also  Neill  r.  Duke  of  Devonshire,  8  App.  Cas.  135  ;  Gam- 
mell  V.  Coraniissioners  of  Wooils  and  Forests,  3  Macq.  419  ;  Mowat  v. 
McFee,  5  Sup.  Ct.  of  Canada,  66  ;  The  Queen  v.  Cubitt,  22  Q.  B.  D. 
622;  St.  46  &  47  Vict.  c.  22.^ 


DIRECT   UNITED    STATES    CABLE    CO.    c.    ANGLO- 
AMERICAN   TELEGRAPH    CO. 
Judicial  Committee  of  the  Privy  Cou.nxil.     1877. 
[Reported  -1  Appeal  Cases,  394.] 

Lord  Blackblrn.^  .  .  .  Conception  Bay  lies  on  the  eastern  side  of 
Newfoundland,  between  two  promontories,  the  southern  ending  at  Cape 
St.  Francis,  and  the  northern  promontory  at  Split  Point.  No  evidence 
ha«  been  given,  nor  was  any  required,  as  to  the  configuration  and  di- 
mensions of  the  bay.  as  that  was  a  matter  of  which  the  court  could  take 
judicial  notice. 

On  inspection  of  the  Admiralty  chart,  the  following  statement,  though 
not  precisely  accurate,  seems  to  their  Lordships  sufficiently  so  to  enable 
them  to  decide  the  question  :  — 

The  bay  is  a  well-marked  bay,  the  distance  from  the  head  of  the  bay 
to  Cape  St.  Francis  l)eiiig  about  forty  miles,  and  the  distance  from  the 
head  of  the  bay  to  Split  Point  being  about  fifty  miles.  The  average 
width  of  the  bay  is  al)out  fifteen  miles,  but  the  distance  from  Cape  St. 
Francis  to  Split  I*oint  is  rather  more  than  twenty  miles. 

The  appellants  have  brought  and  laid  a  telegr:i[)h  cable  to  a  buoy 
more  than  thirty  miles  within  this  bay.  The  buoy  is  more  than  three 
miles  from  the  shore  of  the  bay,  and  in  laying  the  cable,  care  has  l)een 
taken  not  at  any  point  to  come  within  three  miles  of  the  shore,  so  as  to 
avoid  raising  any  question  as  to  the  territorial  dominion  over  the  ocean 
within  three  miles  of  the  shore.  Their  Lordships  therefore  are  not 
called  upon  to  express  any  oi)inion  on  the  questions  which  were  re- 
cently so  much  discussed  in  the  case  of  Reg.  v.  Kcyn  (the  ''  Franconia" 
ease). 

The  question  raised  in  this  case,  and  to  which  their  Lordships  con- 
fine their  judgment,  is  as  to  the  territorial  dominion  over  a  bay  of 
configuration  and  dimensions  such  as  those  of  Conception  liay  above 
described. 

1  The  remaindrr  of  llu-  opinion  discussns  the  right  of  Jmjsdii'tion  as  l.ctwi'cii 
the  State  and  the  VjniU-A  States.  Allirnnd,  Manchester  w.  Mii.ssarluisetts,  l;J9  U.  S. 
240.  —  Ed. 

2  Only  so  much  of  Lord  Blackburn'k  opinion  is  f,'ivena.s deals  with  the  jurisdi.iiun 

over  Conce]>tioii  Bay.  — Ed. 


38     DIRECT  U,  S.  CABLE  CO.  V.  ANGLO-AMERICAN  TELEG.  CO.     [CHAF.  L 

Tlie  few  English  common-law  authorities  on  this  point  relate  to  the 
question  as  to  where  the  boundary  of  counties  ends,  and  the  exclusive 
jurisdiction  at  common  law  of  the  Court  of  Admiralty  begins,  which  is 
not  precisely  the  same  question  as  that  under  consideration  ;  but  this 
much  is  obvious,  that  when  it  is  decided  that  any  bay  or  estuary  of  any 
particular  dimensions  is  or  may  be  a  part  of  an  English  county,  and  so 
completely  within  the  realm  of  England,  it  is  decided  that  a  similar  bay 
or  estuary  is  or  may  be  part  of  the  territorial  dominions  of  the  country 
possessing  the  adjacent  shore. 

The  earliest  authority  on  the  subject  is  to  be  found  in  the  grand 
abridgment  of  Fitzherbert  "  Corone,"  399,  whence  it  appears  that  in 
the  8  Edw.  II.,  in  a  case  in  Chancer}'  (the  nature  and  subject-matter  of 
which  does  not  appear),  Staunton,  J.,  expressed  an-  opinion  on  the 
subject.  There  are  one  or  two  words  in  the  common  printed  edition  of 
Fitzherbert  which  it  is  not  easy  to  deciplier  or  translate,  but  subject  to 
that  remark  this  is  a  translation  of  the  passage  :  ''  Nota  per  Staunton, 
J.,  that  that  is  not  [saiice  which  Lord  Coke  translates  '  part']  of  the 
sea  where  a  man  can  see  what  is  done  from  one  part  of  the  water  and 
the  other,  so  as  to  see  from  one  land  to  the  other ;  that  the  coroner 
shall  come  in  such  case  and  perform  his  office,  as  well  as  coming  and 
going  in  an  arm  of  the  sea,  there  where  a  man  can  see  from  one  part 
to  the  other  of  the  [a  word  not  deciphered],  that  in  such  a  place  tiie 
country  can  have  conusance,  etc." 

That  is  b}'  no  means  definite,  but  it  is  clear  Staunton  thought  some 
portions  of  the  sea  might  be  in  a  county,  and  within  the  jurisdiction  of 
the  jury  of  that  county,  and  at  that  earl}'  time,  before  cannon  were  in 
use,  he  can  have  had  in  his  mind  no  reference  to  cannon  shot. 

Lord  Coke  recognizes  this  authority,  4th  Institute,  140,  and  so  does 
Lord  Hale.  The  latter,  in  his  treatise,  De  Jm-e  Maris,  p.  1,  c.  4,  uses 
this  language:  "That  arm  or  branch  of  the  sea  which  lies  within  the 
fauces  terrce,  where  a  man  ma}'  reasonably  discerne  between  shore,  is, 
or  at  least  may  be,  within  the  body  of  a  county,  and  therefore  within 
the  jurisdiction  of  the  sheriff  or  coroner.     P^dvvard  TL,  Corone,  399." 

Neither  of  these  great  authorities  had  occasion  to  apply  this  doctrine 
to  any  particular  i)lace,  nor  to  define  what  was  meant  by  seeing  or  dis- 
cerning. If  it  means  to  see  what  men  are  doing,  so,  for  instance,  that 
'  eye-witnesses  on  shore  could  say  who  was  to  blame  in  a  fray  on  the 
waters  resulting  in  death,  the  distance  would  be  very  limited  ;  if  to 
discern  what  great  ships  were  about,  so  as  to  be  able  to  see  their 
manoeuvres,  it  would  be  very  much  moi-e  extensive  ;  in  either  sense  it 
is  indefinite.  But  in  Reg.  v.  Cunningham,  Bell's  Cr.  C.  86,  it  did 
become  necessary  to  determine  whether  a  particular  spot  in  the  Bristol 
Channel,  on  which  three  foreigners  on  board  a  foreign  ship  had  com- 
mitted a  crime,  was  within  the  county  of  Glamorgan,  the  indictment 
having,  whether  necessarily  or  not,  charged  the  offence  as  having  been 
committed  in  that  county. 

The  Bristol  Channel,  it  is  to  be  remembered,  is  an  arm  of  the  sea 


SECT.  I.J     DIRECT  U.  S.  CABLE  CO.  V.  ANGLO-AMERICAN  TELEG.  CO.     39 

dividing  England  fioiu  Wales.  Into  the  upper  end  of  this  arm  of  tlio 
sea  the  River  Severn  flows.  Then  the  arm  of  the  sea  lies  between 
Somersetshire  and  Glamorganshire,  and  afterwards  between  Devon- 
shire and  tlie  counties  of  Glamorgan,  Carmarthen,  and  Pembroke. 
It  widens  as  it  descends,  and  between  Port  Eynon  Head,  the  lowest 
I)oint  of  Glamorganshire,  and  the  opposite  shore  of  Devon  it  is  wider 
tlian  Conception  Bay ;  between  Ilartland  Point,  in  Devonshire,  and 
Pembrokeshire  it  is  much  wider.  The  case  reserved  was  carefully  pre- 
l)ared.  It  describes  the  spot  where  the  crime  was  committed  as  being 
in  tlie  Bristol  Channel,  between  the  Glamorganshire  and  Somersetshire 
coasts,  and  about  ten  miles  or  more  from  that  of  Somerset.  It  nega- 
tived the  spot  being  in  the  Kiver  Severn,  tlie  month  of  which,  it  is 
slated,  was  proved  to  be  at  King's  Road,  higher  up  the  Channel,  and 
was  to  l)e  taken  as  tlie  finding  of  the  jury.  It  also  showed  that  the 
s[>()l  ill  question  was  outside  Penarth  Head,  and  could  not  therefore  be 
treated  as  within  the  smaller  bay  formed  by  Penarth  Head  and  Laver- 
nock  Point.  And  it  set  out  what  evidence  was  given  to  prove  that  the 
spot  had  been  treated  as  part  of  the  countv  of  Glamorgan,  and  the 
question  was  stated  to  be  whether  the  prisoners  were  properly  con- 
victed of  an  offence  within  the  county  of  Glamorgan.  The  case  was 
much  considered,  being  twice  argued,  and  Chief  Justice  Cockburn 
delivered  judgment,  saying:  "The  only  question  with  which  it  be- 
comes necessary  for  us  to  deal  is  whether  the  part  of  the  sea  on 
which  the  vessel  was  at  the  time  when  the  offence  was  committed, 
forms  part  of  the  body  of  the  countv  of  Glamorgan,  and  we  are  of 
opinion  that  it  does.  The  sea  in  question  is  part  of  the  Bristol 
Channel,  both  shores  of  which  form  part  of  England  and  Wales,  of 
the  county  of  Somerset  on  the  one  side,  and  the  count}'  of  Glamorgan 
on  the  other.  We  are  of  opinion  that  looking  at  the  local  situa- 
tion of  this  sea  it  must  be  taken  to  belong  to  the  counties  respec- 
tively by  the  shores  of  which  it  is  bounded;  and  the  fact  of  the 
Holms  between  which  and  the  shore  of  the  county  of  Glamorgan  the 
place  in  question  is  situated,  having  always  been  treated  as  part  of  the 
parish  of  Cardiff,  and  as  part  of  the  count}-  of  Glamorgan,  is  a  strong 
illustration  of  the  princi|)le  on  which  we  proceed,  namely,  that  the 
whole  of  this  inland  sea  ix^twecn  the  counties  of  Somerset  and  Glamor- 
gan, is  to  be  considered  as  within  the  counties  by  the  shores  of  which 
its  several  parts  are  respectively  bounded.  We  arc  therefore  of  opinion 
that  the  place  in  question  is  within  the  body  of  the  county  of  (ilamor- 
gan."  The  case  reserved  in  Cunningham's  Case,  incidentally  states 
that  it  was  about  ninety  miles  Worn  IVnarlh  Roads  (where  the  crime 
was  committedj  to  the  moiitii  of  the  Channel,  which  pcMiits  to  the  head- 
lands in  Pembroke  and  Ilartland  Point  in  Devonshire,  as  being  the 
fauces  of  that  arm  of  the  sea.  It  was  not,  however,  necessary  for  the 
decision  of  Ciiiiiiiriy;h:iMi's  Case  to  determine  what  was  the  entrance  of 
the  P.ristol  Chnnncl.  further  tlian  lliat  it  was  below  (lu;  place  where  the 
criuK;  was  (toiiimiUcd  ;   and  lliough  the   language;   used  in    the  judgMH-nt 


40     DIRECT  U.  S.  CABLE  CO.  V.  ANGLO-AMERICAN  TEL  EG.  CO.     [CHAP.  1 

is  such  as  to  show  that  the  impression  of  the  court  was  that  at  least 
the  whole  of  that  part  of  the  Channel  between  the  counties  of  Somerset 
and  Glamorgan  was  within  those  counties,  perhaps  that  was  not  deter- 
mined. But  this  much  was  determined,  that  a  place  in  the  sea,  out  of 
anj'  river,  and  where  the  sea  was  more  than  ten  miles  wide,  was  within 
the  county  of  Glamorgan,  and  consequentl}',  in  every  sense  of  the 
words  within  the  territory  of  Great  Britain.  It  also  shows  that  usage 
and  the  manner  in  which  that  portion  of  the  sea  had  been  treated  as 
being  part  of  the  county  was  material,  and  this  was  clearly  Lord  Hale's 
opinion,  as  he  says  not  that  a  ba}-  is  part  of  the  count}',  but  only  that 
it  may  be. 

Passing  from  the  Common  Law  of  England  to  the  general  law  of 
nations,  as  indicated  by  the  text  writers  on  international  jurisprudence, 
we  find  an  universal  agreement  that  harbors,  estuaries,  and  bays 
landlocked  belong  to  the  territory  of  the  nation  which  possesses  the 
shores  round  them,  but  no  agreement  as  to  what  is  the  rule  to  deter- 
mine what  is  "■  bay  "  for  this  purpose. 

It  seems  generally  agreed  that  where  the  configuration  and  dimen- 
sions of  the  ba}'  are  such  as  to  show  that  the  nation  occupying  the  ad- 
joining coasts  also  occupies  the  ba}',  it  is  part  of  the  territor}- ;  and 
with  this  idea  most  of  the  writers  on  the  subject  refer  to  defensibility 
from  the  shore  as  the  test  of  occupation  ;  some  suggesting  therefore  a 
width  of  one  cannon  shot  from  shore  to  shore,  or  three  miles  ;  some  a 
cannon  shot  from  each  shore,  or  six  miles  ;  some  an  arbitrarj'  distance 
of  ten  miles.  All  of  these  are  rules  which,  if  adopted,  would  exclude 
Conception  Ba}'  from  the  territory  of  Newfoundland,  but  also  would 
have  excluded  from  the  territory  of  Great  Britain  that  part  of  the 
Bristol  Channel  which  in  Reg.  v.  Cunningham,  Bell's  Cr.  C.  72,  was 
decided  to  be  in  the  county  of  Glamorgan.  On  the  other  hand,  the 
diplomatists  of  the  United  States  in  1793  claimed  a  territorial  jurisdic- 
tion over  much  more  extensive  baj'S,  and  Chancellor  Kent,  in  his  Com- 
mentaries, though  b}'  no  means  giving  the  weight  of  his  authority  to 
this  claim,  gives  some  reasons  for  not  considering  it  altogether  unrea- 
sonable. 

It  does  not  appear  to  their  Lordships  that  jurists  and  text  writers 
are  agreed  what  are  the  rules  as  to  dimensions  and  configuration, 
which,  apart  from  other  considerations,  would  lead  to  the  conclusion 
that  a  bay  is  or  is  not  a  part  of  the  territor}'  of  the  state  possessing  the 
adjoining  coasts  ;  and  it  has  never,  that  they  can  find,  been  made  the 
ground  of  any  judicial  determination.  If  it  were  necessarv  in  this  case 
to  la}'  down  a  rule  the  difficulty  of  the  task  would  not  deter  their  Lord- 
ships from  attempting  to  fulfil  it.  But  in  their  opinion  it  is  not  neces- 
sary so  to  do.  It  seems  to  them  that,  in  point  of  fact,  the  British 
Government  has  for  a  long  period  exercised  dominion  over  this  bay, 
and  that  their  claim  has  been  acquiesced  in  by  other  nations,  so  as  to 
show  that  the  bay  has  been  for  a  long  time  occupied  exclusively  b}' 
Great  Britain,  a  circumstance  which  in  the  tribunals  of  any  country 


SECT.    I.]  FORBES   V.   COCHRANE.  41 

would  be  very  important.  And  moreover  (which  in  a  British  tribunal 
is  conclusive)  the  British  Legislature  has  by  Acts  of  rarliament  de- 
clared it  to  be  part  of  the  British  territory,  and  part  of  the  country 
made  subject  to  the  Legislature  of  Newfoundland. 


SEAGROVE   V.   PARKS. 
High  Court  of  Justick,  Qukex's  Bench  Divisiox.     1891. 
[Reported  [1891]  1  Q   B.  551.] 

Appeal  from  a  refusal  of  Dexman,  J.,  at  chambers,  to  give  loave  to 
serve  a  writ  out  of  the  jurisdiction. 

It  appeared  from  the  affidavit  used  in  support  of  the  application  that  the 
defendant  was  a  naval  officer  on  hoard  H.M.S.  "  Cockatrice,"  appointed 
to  the  Mediterranean  station,  and  that  at  the  time  of  the  applica- 
tion the  ship  was  on  the  high  seas.  There  were  certain  coaling  ports 
at  which  the  ship  would  touch,  and  in  due  course  she  would  put  into 
Malta,  the  chief  port  on  the  station.  It  was  stated  that  leave  had  been 
granted  by  Vaughan  Williams  and  Lawrance,  JJ.,  respectively  at 
chambers,  in  similar  applications  by  the  plaintiffs  in  actions  against 
other  officers  on  board  ships  on  the  Mediterranean  station,  the  orders 
giving  leave  to  serve  the  wiit  "  at  Malta  or  elsewhere  m  the  Mediter- 
ranean." The  application  m  the  present  case  was  refused  by  Dknman, 
J.,  upon  the  ground  that,  as  the  defendant  was  on  the  high  seas  at  the 
time  of  the  application,  the  affidavit  did  not  sufficiently  show,  nor 
could  it  be  shown,  "in  what  place  or  country  such  defendant  is  or 
probably  may  be  found,"  as  required  by  Order  xi.,  r.  4.  The  plaintiffs 
appealed. 

Montariue  Lush,  for  the  plaintiffs. 

Per   Curiam   (Cave  and   Charles,   JJ.).      The  decision   must  be 

affirmed.     As  long  as  the  defendant  is  on  board  his  ship,  he  is  within 

the  jurisdiction,  and  Order  xi.  is  unnecessary  and  inapplicable.     If  it 

is   sought   to  serve   him    out   of  the  jurisdiction,   upon    his   quitting 

his   shii),    the   affidavit   does    not   comply    with   the   requirements   of 

Order  xi.,  r.  4. 

Appeal  dismissed. 


FORBES   V.   COCHRANE. 

King's  Hk.nch.     1H24. 

{"Reported  2  Bdmimll  Sf  Cresswelf,  44S.] 

The  declaration  stated  tlint  the  plaintiff  was  lawfully  possessed  of 

a  certain  cotton   plantation,  situate  in  parts  Iievoud  the  seas,  to  wit. 

In  East  Florida,  of  large  vahie,  and  on  which  pl.uitatidn  lie  employed 


42  FORBES  V.    COCHRANE.  [CHAP.  I. 

divers  persons,  his  slaves  or  servants.  The  first  count  charged  the 
defendants  with  enticing  the  slaves  awa}'.  The  second  count  stated, 
that  the  slaves  or  servants  having  wrongfulh'  and  against  the  plaintiffs 
will,  quitted  and  left  the  plantation  and  the  plaintiff's  service,  and 
gone  into  the  power,  care,  and  keeping  of  the  defendants  ;  the}',  know- 
ing thera  to  be  the  slaves  or  servants  of  the  plaintiff,  wrongfully 
received  the  slaves  into  their  custod}',  and  harbored,  detained,  and 
kept  them  from  the  plaintiffs  service.  The  last  count  was  for  wrong- 
full}'  harboring,  detaining,  and  keeping  the  slaves  or  servants  of  the 
plaintiff  after  notice  given  to  the  defendants  that  the  slaves  were  the 
plaintiff's  property,  and  request  made  to  the  defendants  b\'  the  plain- 
tiff to  deliver  them  up  to  him  :  plea,  not  guilt}".  At  the  trial  before 
Abbott,  C.  J.,  at  the  London  sittings  after  Trinity  term,  1822,  a  ver- 
dict was  found  for  the  plaintiff,  damages  £3800,  subject  to  the  opinion 
of  the  court  on  the  following  case. 

The  plaintiff  was  a  British  merchant  in  the  Spanish  provinces  of 
East  and  West  Florida,  where  he  had  carried  on  trade  for  a  great 
many  years,  and  was  principally  resident  at  Pensacola  in  West  Florida. 
Eai5t  and  West  Florida  were  part  of  the  dominions  of  the  king  of  Spain, 
and  Spain  was  in  amity  with  Great  Britain.  The  plaintiff,  before  and 
at  the  time  of  the  alleged  grievances,  was  the  proprietor  and  in  the 
possession  of  a  cotton  plantation,  called  San  Pablo,  lying  contiguous  to 
the  river  St.  John's,  in  the  province  of  East  Florida,  and  of  about  one 
hundred  negro  slaves  whom  he  had  purchased,  and  who  were  employed 
by  him  upon  his  plantation.  The  river  St.  John's  is  about  thirty  or 
fort}-  miles  from  the  confines  of  Georgia,  one  of  the  United  States  of 
America,  which  is  separated  from  East  Florida  by  the  river  St.  Mary, 
and  Cumberland  Island  is  at  the  mouth  of  the  river  St.  Mary  on  the  side 
ne5:t  Georgia,  and  forms  part  of  that  State.  During  the  late  war  be- 
tween Great  Britain  and  America,  in  the  month  of  February,  1815,  the 
defendant,  Vice- Admiral  Sir  Alexander  Inglis  Cochrane,  was  command- 
er-in-chief of  His  Majesty's  ships  and  vessels  on  the  Korth  American 
station.  The  other  defendant,  Rear- Admiral  Sir  George  Cockburn, 
was  the  second  in  command  upon  the  said  station,  and  his  flag-ship 
was  the  "  Albion."  The  British  forces  had  taken  possession  of  Cumber- 
land Island,  and  at  that  time  occupied  and  garrisoned  the  same.  The 
"  Albion,"  "  Terror  Boml),"  and  others  of  His  Majesty's  .ships  of  war, 
formed  a  squadron  under  Sir  George  Cockburn's  immediate  command 
off  that  island,  where  the  headquarters  of  the  expedition  were."^ 

In  the  night  of  the  2.3d  February,  1815,  a  number  of  the  plaintiff's 
slaves  deserted  from  his  said  plantation,  and  on  the  following  day 
thirty-eight  of  them  were  found  on  board  the  "  Terror  Bomb,"  part  of  the 
squadron  at  Cumberland  Island,  and  entered  on  her  muster-books 
as  refugees  from  St.  John'?.  On  the  26th  of  the  same  month  of 
February,  Sir  George  Cockburn  received  from  the  plaintiff  a  memorial. 
The  plaintiff  prayed  '^  that  the  defendant.  Sir  G.  Cockburn,  would  order 
1  The  statement  of  facts  is  comleiisi-d  bv  (unittiiii,'  unneeessaiy  facts.  —  Ed. 


SECT.    I.]  FORBES    V.    COCHKAXE.  4!^ 

the  said  thirty-eight  slaves  to  be  forthwith  delivered  to  him  their 
lawful  proprietor."  Sir  G.  Coekburn  told  him  he  might  see  his  slaves, 
and  use  any  arguments  and  persuasions  he  chose  to  induce  them  to 
return.  The  plaintitf  accordingly  endeavored  to  persuade  them  to  go 
back  to  his  plantation,  and  no  restraint  was  put  upon  them,  but  thej- 
refused  to  go.  The  plaintiff  then  urged  his  claim  very  strongly  to  Sir 
G.  Coekburn,  and  said  he  must  get  redress  if  he  did  not  succeed  in 
prevailing  upon  Sir  G.  Coekburn  to  order  them  back  again,  wliich 
Sir  G.  Coekburn  said  he  could  not  do,  because  they  were  free  agents 
and  might  do  as  they  pleased,  and  that  he  could  not  force  them  back. 

HoLKOYD,  J.^  I  am  also  of  opinion,  tliat  the  plaintiff  is  not  en- 
titled to  maintain  the  present  action.  The  declaration  alleges,  that  the 
plaintiff  was  the  proprietor,  and  in  the  possession  of  a  cotton  plantation 
Iving  contiguous  to  tlie  river  St.  John's,  in  East  Florida,  on  which  land 
he  employed  divers  persons,  his  slaves  or  servants.  The  plaintitf, 
therefore,  claims  a  general  property  in  them  as  his  slaves  or  servants, 
and  he  claims  this  property,  as  founded,  not  upon  any  municipal  law  of 
the  country  where  he  resides,  but  ui)on  a  general  right.  This  action 
is  therefore  founded  upon  an  injury  done  to  that  general  right.  Now 
it  appears,  from  the  facts  of  the  case,  that  the  plaintiff  had  no  right  in 
these  persons,  except  in  their  character  of  slaves,  for  they  were  not 
serving  him  under  any  contract ;  and,  according  to  the  principles  of  the 
English  law,  such  a  right  cannot  be  considered  as  warranted  by  the 
general  law  of  nature.  I  do  not  mean  to  say  that  particular  cir- 
cumstances may  not  introduce  a  legal  relation  to  that  extent ;  but 
assuming  that  there  may  be  such  a  relation,  it  can  only  have  a  local 
existence,  where  it  is  tolerated  by  the  particular  law  of  the  place,  to 
which  law  all  persons  there  resident  are  bound  to  submit.  Now  if  the 
plaintiff  cannot  maintain  this  action  under  the  general  law  of  nature, 
iii(l('l)endently  of  any  positive  institution,  then  his  right  of  action  can 
l)e  founded  only  upon  some  right  which  he  lias  acquired  by  the  law  of 
the  country  where  he  is  domiciled.  If  he,  being  a  British  subject, 
could  show  that  the  defendant,  also  a  British  subject,  had  entered  the 
country  where  he,  the  plaintiff,  was  domiciled,  and  had  done  anv  act* 
amounting  to  a  violation  of  tliat  right  to  the  possession  of  slaves  which 
was  allowed  by  the  laws  of  that  c(jiintry,  I  am  by  no  means  prepared 
to  say  that  an  action  might  not  \n\  nininlaincd  against  him.  The  laws 
of  England  will  protect  the  rigiits  of  r>iitish  subjects,  and  give  a 
remedy  for  a  grievance  committed  by  one  British  subject  U[)on  another, 
in  whatever  country  tiiat  may  be  done.  That,  however,  is  a  very 
different  case  from  the  present.  Here,  the  pliiintiff,  a  British  subject, 
was  resident  in  a  Spanish  colony,  ami  pcriiaps  it  may  l)e  infcjrred,  from 
wiiat  is  stated  in  tlie  special  case,  that,  l)y  the  law  of  that  colony, 
slaveiy  was  tolerated.  I  am  of  opinion,  that,  according  to  the  prin- 
ci[)les  of  the  English  law,  the  right  to  slaves,  even  in  u  country  whero 

^  The  arguments  of  counsel,  tlic  oiiinion  of  I'.avi.kv,  .1.,  mikI  |i,iit  of  tlic  opinion  o/ 
Pjkst,  J.,  are  omitted.  —  Ed. 


44       -  FORBES  V.    COCHKANE.  [  CHAP.  I. 

such  rights  are  recognized  by  law,  must  be  considered  as  founded  not 
upon  the  law  of  nature,  but  upon  the  particular  law  of  that  country. 
And,  supposing  that  the  law  of  England  would  give  a  remedy  for  the 
violation  of  such  a  right  by  one  British  subject  to  another  (both  being 
resident  in  and  bound  to  obey  the  laws  of  that  country)  still   the  right 
to  these  slaves  being  founded  upon  the  law  of  Spain,  as  applicable  to 
the  Floridas,  must  be  co-extensive  with  the  territories  of  that  State.     I 
do  not  mean  to  say,  that  if  the  plaintiff  having  the  right  to  possess  these 
persons  as  his  slaves  there,  had  taken  them  into  another  place,  where, 
by    law,  slavery  also  prevailed,  his    right  would  not  have   continued 
in   such   a  place,  the  laws   of  both  countries  allowing   a  property  in 
slaves.     The  law  of  slavery  is,  however,  a  law  in  invttuni  ;  and  when  a 
part}'  gets  out  of  the  territory  where  it  prevails,  and  out  of  the  power  of 
his   master,  and  gets  under  the  protection  of  another  power,  without 
any  wrongful  act  done  by  the  party  giving  that  protection,  the  right  of 
the  master,  which  is  founded  on  the  municipal  law  of  the  particular 
place  only,  does  not  continue,  and  there  is  no  right  of  action  against  a 
party  who  merely  receives  the  slave  in  that  country,  without  doing  any 
wrongful  act.     This  has  been  decided  to  be  the  law  with  respect  to 
a  person  who  has  been  a  slave  in  any  of  our  West  India  colonies,  and 
comes  to  this  country.     The  moment  he  puts  his  foot  on  the, shores  of 
this  country,  his  slavery  is  at  an  end.     Put  the  case  of  an  uninhabited 
island  discovered  and  colonized  by  the  subjects  of  this  country ;  the 
inhabitants   would  be  protected  and    governed    by    the   laws   of  this 
country.     In  the  case  of  a  conquered   country,  indeed,  the  old  laws 
would  prevail,  until  altered  by  the  King  in  council ;  but  in  the  case  of 
the  newly  discovered  country,  freedom  would  be  as  much  the  inheritance 
of  the  inhabitants  and  their  children,  as  if  they  were  treading  on  the 
soil  of  England.     Now,  suppose  a  person  who  had  been  a  slave  in  one 
of  our  own  West  India  settlements,  escaped  to  such  a  country,   he 
would  thereby  become  as  much  a  freeman  as  if  he  had  come  into  Eng 
land.     He  ceases  to  be  a  slave  in   England,  only  because  there  is  no 
law  which  sanctions  his  detention  in  slavery  ;  for  the  same  reason,   he 
would  cease  to  be  a  slave  the  moment  he  landed  in  the  supposed  newly 
■discovered  island.     In  this  case,  indeed,   the  fugitives  did  not  escape 
to  any  island  belonging  to  England,  but  they  went  on  board  an  Eng- 
lish ship  (which  for  this  purpose  may  be  considered  a  floating  island), 
and  in  that  ship  they  became  subject  to  the  English  laws  alone.     They 
then  stood  in  the  same  situation  in  this  respect  as  if  they  had  come  to 
an  island  colonized  by  the  English.     It  was  not  a  wrongful  act  in  the 
defendants  to  receive  them,  quite  the  contrary.     The  moment  they  got 
on  board  the  Enghsh  ship  there  was  an  end  of  any  right  which  the 
plaintiff  had  by  the  Spanish  laws  acquired  over  them  as  slaves.     They 
had  got  beyond  the  control  of  their  master,   and  beyond  the  territory 
where  the  law  recognizing  them  as  slaves  prevailed.     They  were  under 
the  protection  of  another  power.     The  defendants  were  not  subject  to 
the  Spanish  law,  for  they  had  never  entered  the   Spanish   territories, 


SECT.    I.J  FORBES    V.    COCHRANE.  45 

either  as  friends  or  enemies.  The  plaintiff  was  permitted  to  see  the 
men,  and  to  endeavor  to  persuade  them  to  return  ;  but  in  that  he  failed. 
He  never  applied  to  be  permitted  to  use  force ;  and  it  does  not  appiar 
that  he  had  the  means  of  doing  so.  I  think  that  Sir  G.  Cockburn  was 
not  bound  to  do  more  than  he  did  ;  whether  he  was  bound  to  do  so 
much  it  is  uunecessar}-  for  me  to  sav.  It  was  not  a  wrongful  act  in 
him,  a  British  officer,  to  abstain  from  using  force  to  compel  the  men  to 
return  to  slavery.  It  does  not  appear  that  he  prevented  force  being 
used.  I  do  not  sa}-  that  he  might  not  have  refused,  but  in  fact  there 
was  no  refusal.  I  have  given  my  opinion  upon  this  question,  suppos- 
ing that  there  would  be  a  right  of  action  against  these  defendants,  if  a 
wrong  had  actually  been  done  by  them,  but  I  am  by  no  means  clear, 
that  even  under  such,  circumstances,  an}'  action  would  have  been  main- 
tainable against  them  by  reason  of  their  particular  situation  as  officers 
acting  in  discharge  of  a  public  duty,  in  a  \Aa.ce  flagrante  hello.  I  doubt 
whether  the  application  ought  not  to  have  been  made  in  such  a  case 
to  the  governing  powers  of  this  country  for  redress.  The  cases  from 
the  Admiralty  Courts  are  distinguishable  from  the  present,  upon  the 
grounds  already  stated  by  my  Brother  Bayley.  In  Madrazo  v.  Willes, 
3  B.  &  Aid.  353,  the  plaintiff  was  a  Spanish  subject,  and  by  the  law  of 
Spain  slavery  and  the  trade  in  slaves  being  tolerated,  he  had  a  right,  by 
the  laws  of  his  own  countrv,  to  exercise  that  trade.  The  taking  away  the 
slaves  w'as  an  active  wrong  done  in  aggression  upon  rights  given  by 
the  Spanish  law.  That  is  very  different  from  requiring,  as  in  this  casse, 
an  act  to  be  done  against  the  slaves,  who  had  voluntarily  left  Wmxx 
master.  When  the\-  got  out  of  the  territoiy  where  thej'  became  sla  res 
to  the  plaintiff  and  out  of  his  power  and  control,  the}'  were,  by  the 
general  law  of  nature,  made  free,  unless  they  were  slaves  by  the  par- 
ticular law  of  the  place  where  the  defendant  received  them.  The}'  were 
not  slaves  b}-  the  law  which  prevailed  on  board  the  British  ship  of  war. 
I  am,  therefore,  of  opinion,  that  the  defendants  are  entitled  to  uhe 
judgment  of  the  court. 

Best  J.  The  question  is.  were  these  persons  slaves  at  the  tipe 
when  Sir  G.  Cockburn  refused  to  do  the  act  which  he  was  desired  to 
do?  I  am  decidedl}'  of  opinion  that  they  were  then  no  longer  slavns. 
The  moment  they  put  their  feet  on  board  of  a  British  man-of-war,  not 
lying  within  the  waters  of  East  Florida  (win-re,  undoulitedly,  the  laws 
of  that  country  would  prevail),  those  persons  who  before  had  been 
slaves,  were  free.  The  defendants  were  not  guilty  of  any  act  pr(v 
judicial  to  the  rights  which  the  plaintiff  alleges  to  have  been  infringed. 
Those  rights  were  at  an  end  before  the  defendants  \fQVii  called  upon  to 
act.  Slavery  is  a  local  law,  and,  therefore,  if  a  man  wishes  to  preserve 
his  slaves,  let  him  attach  them  to  him  by  affection,  or  make  fast  the 
bars  of  their  prison,  or  rivet  well  their  chains,  for  the  instant  they  get 
beyond  the  limits  where  slavery  is  recogni/x'd  by  the  local  law,  they 
have  broken  their  chains,  the\'  have  escaped  from  their  prison,  aud 
•re  free.     These   men,  when   on   board  an  English  ship,    had  all  tin 


46  Mcdonald  v.  mallory.  [chap.  i. 

rights  belonging  to  Englishmen,  and  were  subject  to  all  their  liabilities. 
If  the}'  had  committed  any  offence  they  must  have  been  tried  according 
to  English  laws.  If  any  injury  had  been  done  to  them  they  would  have 
had  a  remedy  b}-  applying  to  the  laws  of  this  country  for  redress.  I 
think  that  Sir  G.  Cockburn  did  all  that  he  lawfully  could  do  to  assist 
the  plaintiff;  he  permitted  him  to  endeavor  to  persuade  the  slaves  to 
return  ;  but  he  refused  to  apply  force.  I  think  that  he  might  have  gone 
further,  and  have  said  that  force  should  not  be  used  by  others  ;  for  If 
an}'  force  had  been  used  by  the  master  or  an}'  person  in  his  assistance, 
can  it  be  doubted  that  the  slaves  might  have  brought  an  action  of  tres- 
pass against  the  persons  using  that  force?  Na}',  if  the  slave,  acting 
upon  his  newly  recovered  right  of  freedom,  had  determined  to  vindicate 
that  right,  originally  the  gift  of  nature,  and  had  resisted  the  force,  and 
his  death  had  ensued  in  the  course  of  such  resistance,  can  there  be 
any  doubt  that  ever}'  one  who  had  contributed  to  that  death  would, 
according  to  our  laws,  be  guilty  of  murder?  That  is  substantially 
decided  by  Sommersett's  case,  from  which,  it  is  clear,  that  such  would 
have  been  the  consequence  had  these  slaves  been  in  England ;  and  so 
far  as  this  question  is  concerned,  there  is  no  difference  between  an 
English  ship  and  the  soil  of  England  ;  for  ai'e  not  those  on  board  an 
English  ship  as  much  protected  and  governed  by  the  English  laws  as  if 
they  stood  upon  English  land?  Judgment  for  the  defendants.^ 


McDonald  v.  mallory. 

Court   of   Appeals,  New  York.     1879. 
[Reported   77   N.    Y.  546.] 

E.APALLO,  J.^  For  the  purposes  of  this  appeal  the  wrongful  act  or 
neglect  causing  the  death  of  the  plaintiff's  intestate  must  be  treated  as 
having  been  committed  upon  the  high  seas.  The  complaint  does  not 
specifically  allege  that  the  disaster  was  caused  by  the  unlawful  or 
negligent  lading  of  the  petroleum  on  board  of  the  vessel  in  the  port 
of  New  York,  and  consequently  the  question  whether  that  fact,  if 
alleged,  would  establish  that  the  wrong  complained  of  was  committed 
within  the  territorial  bounds  of  this  State,  need  not  be  considered. 

We  shall  therefore  come  directly  to  the  principal  point  argued, 
which  is,  whether  under  the  statute  of  this  State,  which  gives  a  right 
of  action  for  causing  death  by  wrongful  act  or  neglect,  an  action  can 
be  maintained  for  thus  causing  a  death  on  the  high  seas,  on  board  of  a 
vessel  hailing  from  and  registered  in  a  port  within  this  State  and 
owned  by  citizens  thereof;  the  person  whose  death  was   so  caused 

1  See  Madrazo  v.  Willes,  3  B.  &  Aid.  3.^3.  —  Ed. 

2  The  opinion  onl)'  is  given  ;  it  sufficiently  .states  the  case.  — Ed. 


SECT.  I.]  Mcdonald  v.  mallohy.  47 

being  also  a  citizen  of  this  State,  the  vessel  being  at  the  time 
employed  by  the  owners  in  their  own  business,  and  their  negligence 
being  alleged  to  have  caused  the  death. 

It  is  settled  i)y  the  adjiulications  of  our  own  courts  that  the  right  of 
action  for  causing  death  by  negligence  exists  only  by  virtue  of  the 
statute,  and  that  where  the  wrong  is  committed  within  a  foreign  State 
or  country,  no  action  therefor  can  be  maintained  here,  at  least  without 
proof  of  the  existence  of  a  similar  statute  in  the  place  where  the 
wrong  was  committed.  (Whittbrd  v.  Panama  R.  R.  Co.,  23  N.  Y. 
465  ;  Crowley  v.  Panama  R.  R.  Co.,  30  Barb.  99  ;  Beach  v.  Bay 
State  Steamboat  Co.,  30  id.  433  ;  Vandeventer  v.  N.  Y.  and  New 
Haven  R.  R.  Co.,  27  id.  244. )  These  decisions  rest  upon  the  plain 
ground  that  our  statute  can  have  no  operation  within  a  foreign  juris- 
diction, and  that  with  respect  to  positive  statute  law  it  cannot  be 
presumed  that  the  laws  of  other  States  or  countries  are  similar  to 
our  own.  (Opinion  of  Demo,  J.,  23  N.  Y.  467,  468,  471.)  The 
liabilit}'  of  a  person  for  his  acts  depends,  in  general,  upon  the  laws 
of  the  place  where  the  acts  were  committed,  and  although  a  civil  riglit 
of  action  acquired,  or  liability  incurred,  in  one  State  or  country  for  a 
personal  injury  may  be  enforced  in  another  to  which  the  parties  mav 
remove  or  where  the}-  be  found,  yet  tlie  right  or  liability  must  exist 
under  the  laws  of  the  place  where  the  act  was  done.  Actions  for 
injuries  to  the  person  committed  abroad  are  sustained  without  proof 
in  the  first  instance  of  the  lex  loci,  upon  the*  presumption  that  the  riglit 
to  compensation  for  such  injuries  is  recognized  b}'  the  laws  of  all 
countries.  But  this  presumption  cannot  apply  where  the  wrong  com- 
plained of  is  not  one  of  those  thus  universally  recognized  as  a  ground 
of  action,  but  is  one  for  whicli  redress  is  glveiD  only  by  statute. 

Keeping  these  principles  in  view  it  is  clear  that  in  order  to  maintain 
this  action  it  is  necessaiy  to  estabhsh  that  the  statute  law  in  question 
was  operative  on  board  of  tlie  vessel  upon  whicii  tlic  injury  was  com- 
mitted. In  all  the  cases  which  have  been  dccidiMl.  the  place  of  the 
injury  was  actually  within  tlie  limits  of  a  foi-eigii  territory,  sul)jeet  to 
its  own  laws,  and  where  there  could  be  no  claim  that  the  laws  of  tins 
State  or  country'  were  operative.  In  tlie  present  case  the  locus  in  r/iio 
was  not  within  tlie  actual  territorial  limits  of  an}'  State  or  nation,  nor 
was  it  subject  to  the  laws  of  any  government,  unless  the;  rule  wluch 
exists  from  necessity  is  ajjplied,  that  every  vessel  on  tlu;  high  seas  is 
constructively  a  part  of  the  tcrritoiyof  the  nation  to  which  slie  belongs, 
and  its  laws  are  operative  on  board  of  her.  In  this  resi)ect  the  case  is 
new. 

There  can  be  no  question  that  if  this  case  were  one  arising  under  tiie 
laws  of  the  United  States  th(!  rult;  refi-rred  to  would  a|)ply,  and  nci-.i 
done  on  board  of  her  wiiile  on  the  higli  seas  would  be  governed  liy 
those  laws.  Tlie  fiuestion  now  prescMtcd  is  whether  in  respect  \n 
matters  not  committed  by  the  Constitution  exclusively  to  the  I-'ederal 
government  nor  legislated  upon  by  (Jongress,  hut  regulated   cuiirci} 


48  Mcdonald  v.  mallory.  [chap,  i 

b}'  State  laws,  the  State  to  which  the  vessel  belongs  can  be  regarded 
as  the  sovei'eignty  whose  laws  follow  her  until  she  comes  within  the 
jurisdiction  of  some  other  government. 

This  precise  question  arose  in  the  case  of  Kelly  v.  Crapo  (45  N.  Y. 
86  ;  and  16  Wall.  610),  though  in  a  different  form.  The  question 
there  was  whether  a  vessel  upon  the  high  seas  was  subject  to  the 
insolvent  laws  of  the  State  of  Massachusetts,  to  which  State  the  vessel 
belonged,  that  is,  where  she  was  registered  and  her  owner  resided, 
so  that  by  operation  of  those  laws,  and  without  any  act  of  the  owner, 
the  title  to  the  vessel  could  be  transferred  while  she  was  at  sea  by  a 
proceeding  t?i  invitnm,  to  an  official  assignee,  and  his  title  thus 
acquired  would  take  precedence  of  an  attachment  levied  upon  her 
in  ihe  State  of  New  York  after  she  had  come  within  this  State. 

It  was  conceded  in  that  case,  in  this  court  as  well  as  in  the  Supreme 
Court  of  the  United  States,  that  unless  the  vessel  was  actually'  or  con- 
structivel}'  within  the  jurisdiction  of  the  State  of  Massachusetts  her 
insolvent  law  could  not  operate  upon  her  so  as  to  defeat  a  title  acquired 
under  the  laws  of  the  State  witliin  whose  actual  territorial  jurisdiction 
she  afterwards  came.  (16  Wall.  622.)  But  in  support  of  the  title  of 
the  assignee  in  insolvenc3'  it  was  urged  that  the  rule  before  referred  to 
appHed  to  her,  and  that  while  at  sea  she  was  constructively  a  part  of 
the  territory  of  the  State  of  Massachusetts  and  subject  to  her  laws. 

This  court  held  that  the  rule  inv()ke<l  was  not  applicable  to  a  State, 
and  State  laws,  but  that  flie  jurisdiction  referred  to  was  vested  in  the 
government  of  the  United  States,  and  that  the  national  territoiy  and 
its  laws  onl}'  were  extended  by  legal  fiction  to  vessels  at  sea. 

This  decision  was  reversed  by  tlie  Supreme  Court  of  the  United 
States  (Crapo  v.  Kelly,  16  Wall.  610),  and  as  we  understand  the 
prevailing  opinion  in  that  court,  it  holds  that  the  relations  of  a  State 
to  the  Union  do  not  affect  its  status  as  a  sovereign,  except  with  respect 
to  those  powers  and  attributes  of  sovereignty  which  l)ave  b}-  tlie  Con- 
stitution been  transferred  to  the  government  of  the  United  States,  and 
that  in  all  other  respects  it  stands  as  if  it  were  an  independent  sov- 
ereign State,  unconnected  with  the  other  States  of  the  Union.  Upon 
this  principle  it  was  held  that  the  vessel  while  at  sea  was  constructively 
part  of  the  territory  of  the  State  of  Massachusetts  and  subject  to  its 
laws.  (16  Wall.  623,  624,  631-632.)  It  is  difficult  to  conceive  any 
other  principle  upon  which  that  conclusion  could  have  been  reached. 

In  respect  to  crimes  committed  on  the  high  seas,  the  power  to 
provide  for  their  punishment  has  been  delegated  to  the  Federal  govern- 
ment, and  for  that  reason  State  laws  cannot  be  applicable  to  them  ;  but 
I  cannot  escape  the  conclusion  that  under  the  principle  of  the  case  of 
Crapo  V.  Kell}'  civil  rights  of  action,  for  matters  occurring  at  sea  on 
board  of  a  vessel  belonging  to  one  of  the  States  of  the  Union  must 
depend  upon  the  laws  of  that  State,  unless  they  arise  out  of  some 
matter  over  which  jurisdiction  has  been  vested  in  and  exercised  by 
the  government  of  the   United  St:it('<.  or  over  which   the   State  has 


SECT.  I.]  MCDONALD  V.    MALLORY.  49 

transferred  its  rights  of  sovereignty  to  the  United  States  ;  and  that  to 
this  extent  the  vessel  must  be  regarded  as  part  of  the  territory  of  the 
State,  while  in  respect  to  her  relations  with  foreign  governments, 
crimes  committed  on  board  of  her,  and  all  other  matters  over  which 
jurisdiction  is  vested  in  the  Federal  government,  she  must  be  regarded 
as  part  of  the  territor}'  of  the  United  States  and  subject  to  the  laws 
thereof. 

The  facts  alleged  in  the  complaint,  and  admitted  by  the  demurrer, 
present  a  strong  case  for  the  application  of  the  rule  that  the  laws  of 
the  State  to  which  the  vessel  belongs  follow  her  until  she  comes 
within  some  other  jurisdiction.  The  defendants,  b}-  whom  the  wrong 
is  alleged  to  have  been  committed,  were,  at  all  times  up  to  its  final 
consumuiation  b}'  the  death  of  the  plaintiff's  intestate,  citizens  and 
residents  of  this  State,  and  subject  to  its  laws,  and  the  deceased  was 
also  a  citizen  of  this  State.  The  death  was  caused  either  l)y  the 
illegal  and  negligent  act  done  in  this  State  of  ladmg  the  dauicerous 
and  prohibited  article  on  board  the  vessel  and  sending  the  deceased  to 
sea  in  her  thus  exposed,  or  by  the  negligence  or  wrongful  acts  of  the 
defendants  committed  at  sea  through  their  agents.  The  complaint 
does  not  distinctl}'  specify  which,  but  it  must  have  been  one  or  the 
other.  If  the  latter,  then,  at  the  place  where  the  injury  was  consum- 
mated there  was  no  law  by  which  to  determine  whether  or  not  it 
rendered  the  defendants  liable  to  an  action,  unless  the  law  of  the 
State  to  which  the  vessel  belonged  followed  her.  In  the  present  case 
the  defendants  were,  at  the  time  of  the  wrongful  act  or  neglect,  and  of 
the  injury,  within  this  State  and  subject  to  its  laws,  and  none  of  the 
objections,  suggested  in  the  various  cases  which  have  been  cited,  to 
subjecting  them  to  liabilit}'  under  the  statute,  for  acts  done  out  of  the 
territory  of  the  State,  can  apph'.  There  can  be  no  double  liabilit}',  as 
suggested  by  Denio,  J.,  in  23  N.  Y.  467,  471,  for  the  locutf  in  quo 
was  not  subject  to  the  laws  of  any  other  country  ;  nor  can  it  be  said 
that  the  deceased  or  his  representatives  were  under  the  protection  of 
the  laws  of  any  other  government,  as  is  said  in  some  of  the  other  cases 
cited.  It  is  a  case  where  no  confusion  or  injustice  can  result  from  the 
application  of  the  principle  declared  by  the  Supreme  Court,  that  the 
laws  of  the  State  as  well  as  of  the  United  States,  enacted  within  tlieir 
respective  spheres,  follow  the  vessel  when  on  the  high  seas.  In  the 
opinion  of  the  court  at  General  Term  in  this  case  it  is  expressly  con- 
ceded that  both  the  laws  of  the  .State  and  the  nation  have  dominion  on 
a  vessel  on  the;  higli  seas,  but  the  demurrer  was  sustained  on  the 
ground  that  this  right  of  jurisdiction  has  not  been  exercised  by  the 
State  of  New  York,  and  its  statutes  are  restricted  in  their  operation 
to  the  actual  territorial  bounds  of  the  State. 

No  such  restriction  is  contained  in  the  statute  now  under  considera- 
tion. Its  language  is  broad  and  general  and  b}-  its  terms  it  operates 
in  all  places.  Its  operation  on  cases  arising  in  other  States  and 
countries  has   not  been  denied    by  reason  of  anything  contained   in 


50  Mcdonald  v.   mallory.         [chap,  i, 

the  act  itself  or  in  any  other  legislative  act,  but  on  general  principles 
of  law. 

But  the  court  rests  its  conclusion  upon  the  act  of  the  Legislature  of 
this  State  which  defines  its  boundaries  and  declares  that  the  sovereignty 
and  jurisdiction  of  this  State  extends  to  all  the  places  within  the 
boundaries  so  declared  (1  R.  S.  62,  65),  and  it  construes  that  act  as 
a  renunciation  or  abrogation  of  any  effect  which  might  on  general 
principles  of  law  be  given  to  its  statutes  on  board  of  vessels  on  the 
high  seas. 

We  are  unable  to  concur  in  this  view.  The  act  referred  to  was 
intended  to  define  simply  the  actual  territorial  bounds  of  the  State, 
and  the  declaration  that  its  sovereignty  and  jurisdiction  should  extend 
to  all  places  within  those  bounds  was  not  intended  to  nor  could  it 
operate  as  a  restriction  upon  subsequent  legislation,  nor  had  it  any 
reference  to  such  a  question  as  that  now  before  us.  Whatever  opera- 
tion our  laws  may  have  on  board  of  vessels  at  sea  depends  upon 
general  principles,  and  there  is  nothing  in  the  legislation  of  our  State 
which  places  it  in  this  respect  on  a  different  footing  from  any  other. 
Is  is  not  claimed  that  the  sovereignty  and  jurisdiction  of  this  State 
extend  to  its  vessels  when  at  sea,  as  they  do  to  places  within  its 
boundaries,  for  all  purposes,  such  as  service  of  process,  the  execu- 
tion of  judgments  and  the  like,  but  only  that  when  acts  done  at  sea 
become  the  subject  of  adjudication  here,  the  rights  and  liabilities  of 
parties  may  in  some  cases  be  determined  with  reference  to  our  statutes. 
There  is  nothing  inconsistent  with  this  in  the  act  referred  to,  or  in  the 
assertion  of  sovereignty  and  jurisdiction  for  all  purposes  over  places 
within  the  bounds  of  the  State. 

The  decision  of  this  court  in  Kelly  v.  Crapo  is  referred  to  as  the 
highest  evidence  that  this  State  never  intended  that  its  laws  should 
extend  to  vessels  on  the  high  seas.  That  decision  recognized  the 
o-eneral  principle  that  the  laws  of  a  nation  do  so  extend,  but  was  based 
upon  the  theory  that  the  relation  of  the  State  to  the  Union  was  such 
that  this  attribute  of  sovereignty  had  become  merged  in  the  powers 
granted  to  the  general  government.  But  the  judgment  of  the  Supreme 
Court  of  the  United  States  having  established  the  contrary  view,  and 
that  in  matters  not  the  subject  of  Federal  legislation,  the  laws  of  the 
State  follow  the  vessel,  thus  making  the  laws  of  the  State  and  of  the 
United  States,  in  their  respective  spheres,  together  constitute  the  law 
of  the  nation  to  which  the  vessel  belongs,  we  adopt  that  decision  as  the 
judgment  of  the  tribunal  to  whom  the  ultimate  determination  of  ques- 
tions of  that  nature  properly  belongs. 

There  is  nothing  in  the  nature  of  this  action  which  renders  it  exclu- 
sively the  subject  of  Federal  cognizance.  The  jurisdiction  of  the 
States  and  of  the  United  States  in  the  matter  of  personal  torts  com- 
mitted at  sea,  such  as  assaults  by  a  master  on  his  crew,  injuries  to 
passengers,  and  the  like,  are  concurrent,  though  remedies  by  proceed- 
ings ill  rem  can  be  administered  only  by  the  Courts  of  Admiralty  of  the 


SECT.   I.]  REGINA   V.   ANDERSON.  51 

United  States.  The  field  of  legislation  in  respect  to  eases  like  the 
present  one  has  not  been  occupied  by  the  general  government  and  is 
therefore  open  to  the  States.  (Steamboat  Co.  v.  Chase,  16  Wall. 
522,  530,  533.)  Indeed  the  United  States  Court  of  Admiralty  would 
have  no  jurisdiction  in  such  a  case  (Steamboat  Co.  v.  Chase,  16  Wall. 
522,  530,  533;  Sherlock  i:  Allen,  93  U.  S.  99),  and  there  is  no 
greater  objection  to  extending  the  operation  of  a  statute  of  this 
description  to  a  vessel  at  sea  than  there  was  to  giving  similar  opera- 
tion to  a  State  insolvent  law. 

The  judgment  of  the  court  below  should  be  reversed,  and  judgment 
rendered  for  the  plaintiff  on  the  demurrer,  with  leave  to  the  defendants 
to  answer  on  payment  of  costs  witlun  thirty  days. 

All  concur,  except  Andrews,  J.,  absent. 

Judgment  accordingly.^ 


KEGINA  V.   ANDERSOX. 

Crown  Case  Reserved.     1868. 

[Reported  11  Cox  C.C.  198.] 

Case  reserved  by  Byles,  J.,  at  the  October  Sessions  of  the  Central 
Criminal  Court,  1868,  for  the  opinion  of  this  court. 

James  Anderson,  an  American  citizen,  was  indicted  for  murder  on 
board  a  vessel,  belonging  to  the  port  of  Yarmouth  in  Nova  Scotia. 
She  was  registered  in  London,  and  was  sailing  under  the  Britisli  Hag. 

At  the  time  of  the  offence  committed  the  vessel  was  m  the  river 
Garonne,  withm  the  boundaries  of  the  French  empire,  on  her  way  up 
to  Bordeaux,  which  city  is  by  the  course  of  the  river  about  ninety  miles 
from  the  open  sea.  The  vessel  had  proceeded  al)out  half-way  up  the 
river,  and  was  at  the  time  of  the  offence  about  three  hundred  yards 
from  the  nearest  shore,  the  river  at  that  place  being  about  half  a  mile 
wide. 

The  tide  flows  up  to  the  place  and  beyond  it.  ^     ^ 

No  evidence  was  given  whether  tlie  place  was  or  was  not  within  the 
limits  of  the  port  of  Bordeaux. 

It  was  objected  for  the  prisoner  that  the  offence  having  been  com- 
mitted within  the  empire  of  France,  the  vessel  being  a  colonial  vessel, 
and  the  prisoner  an  American  citizen,  tiie  court  liad  no  jurisdiction  to 

try  him. 

I  expressed  an  opinion  unfavorable  to  the  objection,  but  agreed  to 
grant  a  case  for  the  opinion  of  this  court. 

The  prisoner  was  convicted  of  manslaughter. 

J.  Barnard  Byles. 

Ace  Crapo  v  KoUy,  10  Wall.  GIO.  And  see  to  the  same  effect  a  decision  of  the 
Court  of  Cassation,  Turin  (Italy),  April  14,  1880,  (8  Clnnet,  f.-'-.l)  :  a  Sicilian  sailor 
on  a  vessel  rcj,'isteivd  in  Lonibardy  is  sul.ject  to  a  section  of  the  Penal  Code  which  is  in 
force  in  Lombardy,  but  not  in  Sicily. —  Eu. 


52  REGINA   V.   ANDERSON.  [CHAP.    L 

BoviLL,  C.  J.^     There  is  no  doubt  that  the  place  where  the  offence 
was  committed  was  within  tlie  territory  of  France,  and  that  tlie  pris- 
oner was  therefore  subject  to  tlie  laws  of  France,  which  the  local  author- 
ities of  that  realm  might  have  enforced  if  so  minded  ;  but  at  the  same 
time,  in  point  of  law,  the  offence  was  also  committed  witliin  British 
territory,  for  the  prisoner  was  a  seaman  on  board  a  merchant  vessel, 
which,  as  to  her  crew  and  master,  must  be  taken  to  have  been  at  the 
time  under  the  protection  of  the  British  flag,  and,  therefore,  also  amen- 
able to  the  provisions  of  the  British  law.     It  is  true  that  the  prisoner 
was  an  American  citizen,  but  he  had  with  liis  own  consent  embarked 
on  board  a  British  vessel  as  one  of  the  crew.      Although  the  prisoner 
was  subject  to  the  American  jurisprudence  as  an  American  citizen,  and 
to  the  law  of  France  as  having  committed  an  otTence  within  the  terri- 
tory of  France,  yet  he  must  also  be  considered  as  subject  to  the  juris- 
diction  of  British  law,    which    extends    to  the    protection   of  British 
vessels,  though  in  ports  belonging  to  another  country.     From  the  pas- 
sage in  the  treatise  of  Ortolan,  already  quoted,  it  appears  that,  with 
regard  to  offences  committed  on  board  of  foreign  vessels  within  the 
French  territory,  the   French  nation  will  not   assert  their  police  law 
unless  invoked  by  the  master  of  the  vessel,  or  unless  the  offence  leads 
to  a  disturbance  of  the  peace  of  the  port  ;  and  several  instances  wliei-e 
that  course  was  adopted  are  mentioned.     Among  these  are  two  cases 
where  offences  were  committed  on  board  American  vessels  —  one  at  tlie 
port  of  Antwerp,  and  the  other  at  Marseilles  —  and  where,  on  the  local 
authorities  interfering,  the  American  court  claimed  exclusive  jurisdic- 
tion.    As  far  as  America  herself  is  concerned,  it  is  clear  that  she,  by 
the  statutes  of  the  23rd  of  March,   1825,  has  made  regulations  for  per- 
sons on  board  her  vessels  in  foreign  parts,  and  we  have  adopted  the 
same  course  of  legislation.     Our  vessels  must  be  subject  to  the  laws  of 
the  nation  at  any  of  whose  ports  they  may  be,  and  also  to  the  laws  of 
our  country,  to  which  they  belong.     As  to  our  vessels  when  going  to 
foreign  parts  we  have  the  right,  if  we  are  not  Ijound,  to  make  regula- 
tions.    America  has  set  us  a  strong  example  that  we  have  the  right  to 
do  so.     In  the  present  case,  if  it  were  necessary  to  decide  the  question 
on  the  17  &  18  Vict.  c.  104,  I  should  have  no  hesitation  in  saying  that 
we  now  not  only  legislate  for  British  subjects  on  board  of  British  ves- 
sels, but  also  for  all  those  who  form  the  crews  thereof,  and  that  there 
IS  no  difficulty  in  so  construing  the  statute  ;  but  it   is  not  necessary  to 
decide  that  point  now.     Independently  of  that  statute,  the  general  law 
is  sufficient  to  determine  this  case.     Here  the  offence  was  committed 
on  board  a  British  vessel  by  one  of  the  crew,  and  it  makes  no  difference 
whether  the  vessel  was  within  a  foreign  port  or  not.     If  the  offence  had 
been   committed  on  the  high  seas  it  is  clear  that  it  would  have  been 
within    the  jurisdiction   of  the   Admiralty,   and   the   Central   Criminal 
Court  has  now  the  same  extent  of  jurisdiction.      Does   it    make   any 
1  Arguments  of  counsel  and  the  concurring  opinions  of  Chaxxell,  B.,  and  Black- 
burn and  Lush,  JJ.,  are  omitted.  — Ed. 


SECT.    I.J  REGINA   V.   ANDERSON.  53 

difference  because  the  vessel  was  in  the  river  Garonne  half-way 
between  the  sea  and  the  head  of  the  river?  The  place  where  the 
offence  was  committed  was  in  a  navigable  part  of  the  river  below 
bridge,  and  wliere  the  tide  ebbs  and  flows,  and  great  ships  do  lie  and 
hover.  An  offence  committed  at  such  a  place,  according  to  the  author- 
ities, is  within  the  Admiralty  jurisdiction,  and  it  is  the  same  as  if  the 
offence  had  been  committed  on  the  high  seas.  On  the  whole  I  come  to 
the  conclusion  that  the  prisoner  was  amenable  to  the  British  law,  and 
that  the  conviction  was  right. 

Byles,  J.  I  am  of  the  same  oi)inion.  I  adhere  to  the  opinion  that 
I  expressed  at  the  trial.  A  British  ship  is,  for  the  purposes  of  this 
question,  like  a  floating  island  ;  and,  when  a  crime  is  committed  on 
board  a  British  ship,  it  is  within  the  jurisdiction  of  the  Admiralty 
Court,  and  therefore  of  the  Central  Criminal  Court,  and  the  offender  is 
as  amenable  to  British  law  as  if  he  had  stood  on  the  Isle  of  Wight  and 
committed  the  crime.  Two  English  and  two  American  cases  decide 
that  a  crime  committed  on  board  a  British  vessel  in  a  river  like  the  one 
in  question,  wht-re  there  is  the  flux  and  reflux  of  the  tide,  and  wherein 
ureat  ships  do  hover,  is  within  the  jurisdiction  of  the  Admiralty  Court; 
and  that  is  also  the  opinion  expressed  in  Kent's  Commentaries.  Tlie 
only  effect  of  tlie  ship  being  within  the  ambit  of  French  territory  is  that 
there  might  have  been  concurrent  jurisdiction  had  the  French  claimed 
it.  I  give  no  opinion  on  the  question  whether  the  case  comes  within 
the  enactment  of  the  Merchant  Shipping  Act.^ 


Vaughan,  C.  J.,  in  Craw  v.  Ramsey,  Vaughan  274  (1670).  One  ot 
uiv  brothers  .  .  .  said  England  and  Ireland  were  two  distinct  king- 
doms, and  no  otherways  united  than  because  they  had  one  Soveraign. 
Had  this  been  said  of  Scotland  and  England  it  had  been  right,  for 
they  are  both  absolute  kingdoms,  and  each  of  them  fiui  Juris.  But 
Ireland  far  otlierwise  ;  for  it  is  a  dominion  belonging  to  the  crown  of 
England,  and  follows  that  it  cannot  be  separate  from  it  but  by  Act  of 
Parliament  of  England,  no  more  than  Wales,  Guernsey,  Jersey,  Ber- 
wiek,  the  Englisli  Phiiilations,  all  which  are  dominions  belonging  to  the 
realm  of  England,  thougli  not  wiUiin  the  territorial  dominion  or  realm 
<ff  England,  but  follow  it  and  are  a  part  of  its  royalty.  .  .  •  Wales, 
after  the  conquest  of  it  by  Edward  the  First,  was  annext  to  England, 
jure  proprietatia  12  Ed.  1,  by  the  Statute  of  Ruthland  only,  and  after 
more  really  l)y  27  II.  8  c.  20  ;  but  at  first  received  laws  from  England 
as  Ireland  did  ;  l»ut  not  proceeded  l)y  writs  out  of  the  English  (!han- 
cery,  but  had  a  Chancery  of  his  own,  as  Ireland  hath;  was  not  bound 
l)y  the  laws  of  England,  unnamed,  until  27  II.  8,  no  more  than  Ireland 
now  is.  Ireland  in  nothing  differs  from  it  but  in  having  a  Parliament 
(jmtia  Regis,  subject  to  the  Parliament  of  England.  It  might  have 
1  See  R<-,£,'.  V.  Lojiez,  7  Cox  C.  C.  431  ;  Il(•.^'.  u.  Anns! ion.;;,  18  Cox  C.  C.  184,  —  Ed- 


(Sl^wv"^^ 


54  CAMPBELL   V.    HALL.  [CHAP.   I. 

had  SO,  if  the  King  pleased,  but  it  was  annext  to  England.  None 
doubts  Ireland  as  conquer'd  as  it,  and  as  much  subject  to  the  Parlia- 
ment of  England  if  it  please. 

Vaughan,  C.  J.,  Wilde  and  Archeu,  JJ.,  in  the  same  case  (2 
Ventris  1).  Ireland  was  a  conquered  kingdom,  the  conquest  com- 
pleated,  if  not  begun,  in  King  Henr3'  the  Second's  time  ;  in  whose  time 
there  is  no  record  of  an}'  establishment.  And  being  a  Christian  king 
they  remained  governed  b\-  their  own  laws,  until  King  John  (a/mo  12 
reg)ii  sul)  by  Charter  (for  so  they  conceived  it  to  be,  and  not  b}' 
Parliament ;  for  it  appears  that  the  nobles  were  sworn,  which  is  not 
usual  in  Acts  of  Parliament,  neither  is  it  l^este  Hege  in  Parlianiento) 
introduced  the  English  laws.  Yet  it  ever  hath  remained  a  distinct 
kingdom,  viz.  from  the  bringing  in  the  laws  by  King  John,  M.  Paris 
Hist.  230,  and  Calvin's  Case  in  7  Co.  22.  23  ;  the  Conquest  brought  it 
infra  dominimn  Regis,  seel  non  infra  Regnum  Anglice.  Orurke 
committed  treason  in  Ireland,  and  it  was  held  triable  b}'  Commission, 
b}-  33  H.  8.  as  a  treason  out  of  the  Realm.  20  H.  6.  8,  the  Judges 
here  are  not  bound  to  take  notice  of  the  laws  of  Ireland.  Fitzh. 
Voucher  239,  a  man  in  Ireland  cannot  be  vouched.  Anders.  262, 
263,  2  Inst.  2,  it  is  said.  Magna  Charta  nor  the  Statute  laws  here  did 
not  extend  to  Ireland  until  Poining's  Law,  10  H.  7,  tho'  in  truth  it 
appears  to  be  before  by  8  E.  4.  cap.  10  ;  neither  are  they  obliged  by 
an}'  statute  since  unless  named. 


CAMPBELL  V.  HALL. 
King's  Bench.     1774. 

[Reported  Coicpcr,  204.] 

This  case  was  very  elaborately  argued  four  several  times  ;  and  now 
on  this  day  Lord  Mansfield  stated  the  case,  and  delivered  the  unani- 
mous opinion  of  the  court,  as  follows  : 

This  is  an  action  that  was  brought  by  the  plaintiff,  James  Campbell, 
who  is  a  natural  born  subject  of  this  kingdom,  and  who,  upon  the  3d 
of  March,  1763,  purchased  a  plantation  in  the  island  of  Grenada:  and 
it  is  brought  against  the  defendant  William  Hall,  who  was  a  collector 
for  His  Majesty  of  a  duty  of  four  and  a  half  per  cent  upon  all  goods 
and  sugars  exported  from  the  island  of  Grenada.^ 

...  A  special  verdict  was  found,  which  states  as  follows:  That 
the  island  of  Grenada  was  taken  by  the  British  arras,  in  open  war,  from 
the  French  king.  .  .  .  The  special  verdict  then  states.  .  .  a  proc- 
lamation under  the  great  seal,  hearing  date  the  7th  October,  1763, 
wherein  amongst  other  things  it  is  said  as  follows  :  — 

"Whereas  it  will  greatly  contribute  to  the  speedy  settling  our  said 
governments,  of  which  the  island  of  Grenada  is  one,  that  our  loving 
subjects  should  be  informed  of  our  paternal  care  for  the  security  of  the 
1  Paft  of  tlip  opinion  is  oniitti'(L  —  En. 


SECT.    I.]  CAMPBELL   V.    HALL.  55 

liberties  and  properties  of  those  who  are  and  shall  become  inhabitants 
thereof:  we  have  thought  tit  to  publish  and  declare  by  this  our  procla- 
mation, that  we  have  in  our  letters  patent  under  our  great  seal  of 
Great  Britain,  b\'  which  the  said  governments  are  constituted,  given 
express  power  and  direction  to  our  governors  of  the  said  colonies  re- 
spectively, that  so  soon  as  the  state  and  circumstances  of  the  said 
colonies  will  admit  thereof,  they  shall,  with  the  advice  and  consent  of 
the  members  of  our  council,  summon  and  call  general  assemblies,  within 
the  said  governments  respectively,  in  such  manner  and  form  as  is  used 
and  directed  in  those  colonies  and  provinces  of  America,  which  are 
already'  under  our  immediate  government ;  and  we  have  also  given 
power  to  the  said  governors,  with  the  consent  of  our  said  councils,  and 
the  representatives  of  the  people  to  be  summoned  as  aforesaid,  to  make, 
constitute,  and  ordain  laws,  statutes,  and  ordinances,  for  the  public 
peace,  welfare,  and  good  government  of  our  said  colonies  and  the  in- 
habitants thereof,  as  near  as  ma}'  be  agreeable  to  the  laws  of  England, 
and  under  such  regulations  and  restrictions,  as  are  used  in  our  other 
colonies. 

The  next  instrument  stated  in  the  special  verdict,  is  the  letters 
patent  under  the  great  seal,  or  rather  a  proclamation,  bearing  date  the 
26th  March,  1764  ;  wherein,  tlie  King  recites  a  survey  and  division  .of 
the  ceded  islands,  and  that  he  had  ordered  them  to  be  divided  into 
allotments,  as  an  invitation  to  purchasers  to  come  in  and  purchase  upon 
the  terms  and  conditions  specified  in  that  proclamation. 

The  next  instrument  stated,  is  the  letters  patent  under  the  great 
seal,  bearing  date  the  9th  of  April,  1764.  In  tliese  letters  there  is  a 
commission  appointing  General  Melville  governor,  with  a  power  to 
summon  an  assembly  as  soon  as  the  state  and  circumstances  of  the 
island  would  admit,  and  to  make  laws  with  consent  of  the  governor  and 
council,  with  reference  to  the  manner  of  the  otiier  assemblies  of  the 
king's  provinces  in  America.  Tliis  instrument  is  dated  tiie  9th  of 
April,  1764,  The  governor  arrived  in  Grenada  on  the  14th  December, 
1764,  and  before  the  end  of  the  year  1765,  an  assembly  actually  met. in 
the  island  of  Grenada.  15ut  before  the  arrival  of  tlie  governor  at 
Grenada,  indeed  before  his  departure  for  London,  there  is  another 
instrument  upon  the  validity  of  wiiich  the  whole  (juestion  turns,  which 
instrument  contains  letters  patent  under  the  great  seal,  bearing  date 
tlie  20th  Jul}',  1764.  Wherein,  the  King  reciting,  that  whereas,  in 
Barbadoes,  and  m  all  the  British  Leeward  Islands,  there  was  a  duty  of 
four  and  an  half  per  cent  upon  all  sugars,  etc.  exported  ;  and  reciting 
in  these  words;  that  whereas  it  is  reasonable  and  expedient,  and  of 
importance  to  our  other  sugar  islands,  that  the;  like  duty  should  take 
place  in  our  said  island  of  Grenada;  pioceeds  thus  :  we  have  though' 
fit,  and  our  royal  will  and  pleasure  is,  and  we  do  hereby,  by  virtue  o( 
our  prerogative  royal,  order,  direct,  and  appoint,  that  from  and  after 
the  29th  da}-  of  Septeml)er  next  ensuing  tlu,'  dale  of  tliese  presents,  a 
duty  or  impost  of  four  and   an  lialC  per  (••■iit  in   specie;,  shall   I)e   raised 


56  CAMPBELL    V.    HALL.  [CHAP.    I 

uiul  paid  to  us,  our  heirs  and  successors,  upon  all  dead  commodities, 
the  growth  and  produce  of  our  said  island  of  Grenada,  that  shall  be 
shipped  off  from  the  same,  in  lieu  of  all  customs  and  import  duties, 
hitherto  collected  upon  goods  imported  and  exported  into  and  out  of 
the  said  island,  under  the  authority  of  His  Most  Christian  Majest}-. 

The  special  verdict  then  states  that  in  fact  this  duty  of  four  and  an 
half  per  cent  is  paid  in  all  the  British  Leeward  Islands,  and  sets  forth 
the  several  acts  of  assembly  relative  to  these  duties.  They  are  public 
acts  :  therefore,  I  sliall  not  state  them  ;  as  any  gentleman  ma}'  have 
access  to  them  ;  they  depend  upon  different  circumstances  and  occa- 
sions, but  are  all  referable  to  those  duties  in  our  islands.  This,  with 
what  I  set  out  with  in  the  opening,  is  the  whole  of  the  special  verdict 
that  is  material  to  the  question. 

The  general  question  tliat  arises  out  of  all  these  facts  found  by  the 
special  verdict,  is  tliis  ;  whether  the  letters  patent  under  the  great  seal, 
bearing  date  the  20th  Jul}',  1764,  are  good  and  valid  to  abolish  the 
French  duties  ;  and  in  lieu  thereof  to  impose  the  four  and  an  half  per 
cent  dut}'  above  mentioned,  which  is  paid  in  all  the  British  Leeward 
Islands? 

It  has  been  contended  at  the  bar,  that  the  letters  patent  are  void  on 
two  points  ;  the  first  is,  that  although  they  had  been  made  before  the 
proclamation  of  the  7th  October,  1763,  yet  the  King  could  not  exercise 
such  a  legislative  power  over  a  conquered  country. 

The  second  point  is,  that  though  the  King  had  sulHcient  power  and 
authority  liefore  tiie  7th  October,  1763,  to  do  such  legislative  act.  yet 
before  the  letters  patent  of  the  20th  July,  1764,  he  had  divested  him- 
self of  that  authority. 

A  great  deal  has  been  said,  and  many  authorities  cited  relative  to 
propositions,  in  which  both  sides  seem  to  be  perfectly  agreed  ;  an'd 
which,  indeed,  are  too  clear  to  be  controverted.  The  stating  some  of 
those  propositions  which  we  think  quite  clear,  will  lead  us  to  see  with 
greater  perspicuitv,  what  is  the  question  upon  the  first  point,  and  upon 
what  hinge  it  turns.  I  will  state  the  propositions  at  large,  and  the  first 
is  this : 

A  country  conquered  by  the  British  arms  becomes  a  dominion  of  the 
King  in  the  right  of  his  crown  ;  and,  therefore,  necessarily  subject  to 
the  legislature,  the  Parliament  of  Great  Britain. 

The  2d  is,  That  the  conquered  inhabitants  once  received  under  the 
king's  protection,  become  subjects,  and  are  to  be  universally  considered 
in  that  light,  not  .is  enemies  or  aliens. 

The  3d,  That  the  articles  of  capitulation  upon  which  the  country-  is 
surrendered,  and  the  articles  of  peace  by  which  it  is  ceded,  are  sacred 
and  inviolable  according  to  their  true  intent  and  meaning. 

The  4th,  That  the  law  and  legislative  government  of  every  dominion, 
equally  affects  all  persons  and  all  property  within  the  limits  thereof; 
and  is  the  rule  of  decision  for  all  questions  which  arise  there.  Who- 
ever purchases,  lives,  or  sues  there,  puts  himself  under  the  law  of  the 


SECT.   I.]  CAMPBELL    V.    HALL.  57 

place.     An  Englishman  in  Ireland,  Minorca,  the  Isle  of  Man.  or  the 
Plantations,  has  no  privilege  distinct  from  the  iialives. 

The  5th,  That  the  laws  of  a  conquered  counUv  continue  in  force, 
until  they  are  altered  by  the  conqueror ;  tlie  absurd  exception  as  to 
Pagans,  mentioned  in  Calvin's  case,  shows  the  universality  and  antiquity 
of  the  maxim.  For  that  distinction  could  not  exist  before  the  Christian 
i^ra  ;  and  in  all  probability  arose  from  the  mad  enthusiasm  of  the 
Croisades.  In  the  present  case  the  capitulation  expressly  provides  and 
agrees,  that  they  shall  continue  to  be  governed  by  their  own  laws,  until 
His  Majesty's  further  pleasure  be  known. 

Tiie  6th,  and  last  proposition  is,  that  if  the  King  (and  when  I  say  the 
Kin^'-,  1  always  mean  the  King  without  the  concurrence  of  Parliament), 
has  a  power  to  alter  the  old  and  to  introduce  new  laws  in  a  conquered 
country,  this  legislation  being  subordinate,  that  is,  subordinate  to  his 
own  authority  in  Parliament,  he  cannot  make  any  new  change  contrary 
to  fundamental  principles  :  he  cannot  exempt  an  inhabitant  from  that 
particular  dominion  ;  as,  for  instance,  from  the  laws  of  trade,  or  from 
the  power  of  Parliament,  or  give  him  privileges  exclusive  of  his  other 
subjects  ;  and  so  in  many  other  instances  whicli  might  be  put. 

But  the  present  change,  if  it  had  been  made  before  the  7th  October, 
1763,  would  have  been  made  recently  after  the  cession  of  Grenada  by 
treaty,  and  is  in  itself  most  reasonable,  equitable,  and  political ;  for  it 
is  putting  Grenada,  as  to  duties,  on  the  same  footing  with  all  the  British 
Leeward  Islands.  If  Grenada  [)aid  more  it  would  have  been  detri- 
mental to  her;  if  less,  it  must  l)e  detrimental  to  the  other  Leeward 
Islands:  na}-,  it  would  have  been  carrying  the  (•:x|)itn]ation  into  execu- 
tion, which  gave  the  people  of  Grenada  hopes,  that  if  anv  new  tax  was 
laid  on,  their  case  would  be  the  samn  with  their  fellow  subjects  in  the 
other  Leeward  Islands. 

The  only  question  then  on  this  first  point  is,  "Whether  the  King  had 
a  power  to  make  such  change  between  the  10th  of  February,  1763,  the 
day  the  treaty  of  i)eace  was  signed,  and  the  7tlj  October,  1763?  Tak 
ing  these  propositions  to  be  true  which  I  have  stated  ;  the  only  question 
is,  Whether  the  King  had  of  himself  that  power? 

It  is  left  b}'  the  constitution  to  the  King's  autiiority  to  grant  or  refuse 
a  capitulation  :  if  he  refuses,  and  puts  the  iuliabitants  to  the  sword  or 
exterminates  them,  all  the  lands  belong  to  him.  If  he  receives  tin- 
inhabitants  under  his  protection  and  grants  them  their  property,  he 
has  a  power  to  fix  such  terms  and  conditions  as  he  thinks  proper.  lie 
is  intrusted  with  making  the  treaty  of  peace :  he  may  yield  up  the  con- 
quest, or  retain  it  upon  what  terms  he  pleases.  These  powers  no  man 
ever  disputed,  neither  has  it  hitherto  been  controverted  that  the  Kiu<^ 
might  change  part  or  the  whole  of  the  law  or  political  form  of  govern 
ment  of  a  conquered  dominion. 

To  go  into  the  history  of  the  conquests  made  by  the  Crown  of  Kng 
land. 

The   conquest  and   the  alteration  of  the  laws  of  Ireland   have   inmu 


58  CAMPBELL  V.    HALL.  [CKAP.  I. 

variously  and  learnedl}'  discussed  b\-  lawj-ers  and  writers  of  great  fame, 
at  different  periods  of  time;  but  no  man  ever  said,  tliat  the  change  in 
the  laws  of  that  countr}-  was  made  by  the  Parliament  of  P^ngland  :  no 
man  ever  said  the  Crown  could  not  do  it.  The  fact  in  truth,  after  all 
the  researches  which  have  been  made,  comes  out  clearly  to  be,  as  it  is 
laid  down  b}-  Lord  Chief  Justice  Vaughan,  that  ireland  received  the 
laws  of  England,  by  the  charters  and  commands  of  Henr}-  II.,  King 
John,  Henry  III.,  and  he  adds  an  et  coetera  to  take  in  Edward  I.,  and 
the  subsequent  kings.  And  he  shows  clearly  the  mistake  of  imagining 
that  the  charters  of  the  12th  of  John,  were  bv  tlie  assent  of  a  Parlia- 
ment of  Ireland.  Whenever  the  first  Parliament  was  called  in  Ireland, 
that  change  was  introduced  without  the  interposition  of  the  Parliament 
of  P^ngland  ;  and  must,  therefore,  be  derived  from  the  Crown. 

Mr.  P)arrington  is  well  warranted  in  saying  that  the  statute  of  Wales, 
12th  Edward  I.,  is  certainh'  no  more  than  regulations  made  b}-  the  King 
in  his  council,  for  the  government  of  Wales,  which  the  preamble  says 
was  then  totall}'  subdued.  Though,  for  various  political  purposes,  he 
feigned  Wales  to  be  a  feoff  of  his  crown  ;  j'et  lie  governed  it  as  a  con- 
quest. For  Edward  I.  never  pretended  that  he  could,  without  the  as- 
sent of  Parliament,  make  laws  to  bind  any  part  of  the  realm. 

Berwick,  after  the  conquest  of  it,  was  governed  by  charters  from 
the  Crown  without  the  interposition  of  Parliament,  till  the  reign  of 
James  I. 

All  the  alterations  in  the  laws  of  Gasconv,  Guienne,  and  Calais, 
must  have  been  under  the  King's  authorit}- ;  because  all  the  acts  of 
Parliament  relative  to  them  are  extant.  For  they  were  in  the  reign  of 
Edward  III.,  and  all  the  acts  of  Parliament  of  that  time  are  extant. 
There  are  some  acts  of  Parliament  relative  to  each  of  these  conquests 
that  I  have  named,  but  none  for  any  change  of  their  laws,  and  particu- 
larly with  regard  to  Calais,  which  is  alluded  to  as  if  their  laws  were 
considered  as  given  b}'  the  Crown. 

Besides  the  garrison,  there  are  inhabitants,  property,  and  trade  in 
Gibraltar :  ever  since  that  conquest  the  King  has  made  orders  and 
regulations  suitable  to  tliose  who  live,  etc.  or  trade,  or  enjo}'  property 
in  a  garrison  town. 

The  Attorney-General  alluded  to  a  variety  of  instances,  and  several 
very  lately-,  in  w^iich  the  King  had  exercised  legislation  in  Minorca  : 
there,  there  are  man}'  inhabitants,  much  property,  and  trade.  If  it  is 
said,  that  the  King  does  it  as  coming  in  the  place  of  the  King  of  Spain, 
because  their  old  constitution  remains,  the  same  argument  holds  here. 
For  before  the  7th  October  1763,  tlie  original  constitution  of  Grenada 
continued,  and  the  King  stood  in  the  place  of  their  former  sovereign. 

After  the  conquest  of  New  York,  in  which  most  of  the  old  Dutch 
inhabitants  remained,  King  Charles  11.  changed  the  form  of  their  con- 
stitution and  political  government ;  by  granting  it  to  the  Duke  of  York, 
to  hold  of  his  crown,  under  all  the  regulations  contained  in  the  letters 
patent. 


SECT.    I.]  CAMPBELL   V.    HALL.  59 

It  is  not  to  be  wondered  at  that  an  adjudged  case  in  point  has  not 
been  produced.  No  question  was  ever  started  before,  but  that  the 
King  has  a  right  to  a  legislative  authority  over  a  conquered  country  ;  it 
was  never  denied  in  Westminster  Hall;  it  never  was  questioned  in  Par- 
liament. Coke's  report  of  the  arguments  and  resolutions  of  the  judges 
in  Calvin's  case,  lays  it  down  as  clear.  If  a  king  (says  the  book)  comes 
to  a  kingdom  by  conquest,  he  may  change  and  alter  the  laws  of  that 
kingdom  ;  but  if  he  comes  to  it  by  title  and  descent,  he  cannot  change 
the  laws  of  himself  without  the  consent  of  Parliament.  It  is  plain  he 
alludes  to  his  own  country,  because  he  alludes  to  a  country  where  there 
is  a  Parliament. 

The  authority  also  of  two  great  names  has  been  cited,  who  take  the 
proposition  for  granted.  In  the  year  1722,  the  assembly  of  Jamaica 
being  refractory,  it  was  referred  to  Sir  Philip  Yorke  and  Sir  Clement 
Wearge,  to  know  •'  what  could  be  done  if  the  assembly  should  obsti- 
nately continue  to  withhold  all  the  usual  supplies."  They  reported 
thus:  "  If  Jamaica  was  still  to  be  considered  as  a  conquered  island, 
the  King  had  a  right  to  levy  taxes  upon  the  inhabitants  ;  but  if  it  was 
to  be  considered  in  the  same  light  as  the  other  colonies,  no  tax  could 
be  imposed  on  the  inhabitants  but  by  an  assembly  of  the  island,  or  by 
an  Act  of  Parliament." 

They  considered  the  distinction  in  law  as  clear,  and  an  indisputable 
consequence  of  the  island  being  in  the  one  state  or  in  the  other. 
Whether  it  remained  a  conquest,  or  was  made  a  colony,  they  did  not 
examine.  I  have  upon  former  occasions  traced  the  constitution  of 
Jamaica,  as  far  as  there  are  papers  and  records  in  the  offices,  and  can- 
not find  that  any  Spaniard  remained  upon  the  island  so  late  as  the 
restoration ;  if  any,  there  were  very  few.  To  a  question  I  lately  put 
to  a  person  well  informed  and  acquainted  with  the  country,  his  answer 
was,  there  were  no  Spanish  names  among  the  white  inhabitants,  there 
were  among  the  negroes.  King  Charles  II.  by  proclamation  invited 
settlers  there,  he  made  grants  of  lands :  he  appointed  at  first  a  gov- 
ernor and  council  only  :  afterwards  he  granted  a  commission  to  the 
governor  to  call  an  assembly. 

The  constitution  of  every  province,  immediately  under  the  King,  has 
arisen  in  the  same  manner ;  not  from  grants,  but  from  commissions  to 
call  assemblies :  and,  therefore,  all  the  Spaniards  having  left  tlie  islantl 
or  been  driven  out,  Jamaica  from  the  first  settling  was  an  English 
colony,  who  under  the  authority  of  the  King  planted  a  vacant  island, 
belonging  to  him  in  right  of  his  crown  ;  like  the  cases  of  the  island  of 
St.  Helena  and  St.  John,  mentioned  by  Mr.  Attorney-General. 

A  maxim  of  constitutional  law  as  declared  b}'  all  the  judges  in  Cal- 
vin's case,  and  which  two  sucli  men,  in  modern  times,  as  Sir  Philip 
Yorke  and  Sir  Clement  Wearge,  took  for  granted,  will  require  some 
authorities  to  shake. 

liut  on  the  other  side,  no  l)ook,  no  saying,  no  opinion  has  been  cited, 
no  instance  in  any  pcjiic^il  of  liistory  produced,  where  a  doubt  has  been 


60  CAMPBELL  V.    HALL.  [CHAP.  L 

raised  concerning  it.  The  counsel  for  tlie  plaintiff  no  doubt  labored 
this  point  from  a  ditiidenee  of  what  might  be  our  opinion  on  the  second 
question.  But  upon  the  second  point,  after  full  consideration  we  are 
of  opinion,  that  before  the  letters  patent  of  the  20th  July,  1764,  the 
King  had  precluded  himself  from  the  exercise  of  a  legislative  authorit}' 
over  the  island  of  Grenada. 

The  first  and  material  instrument  is  the  proclamation  of  the  7th  Octo- 
ber, 1763.  See  what  it  is  that  the  King  there  says,  with  wiiat  view, 
and  how  he  engages  himself  and  pledges  his  word. 

••  For  the  better  security-  of  tiie  liberty  and  pi'operty  of  those  who 
are  or  shall  become  inhabitants  of  our  island  of  Grenada,  we  have  de- 
clared by  this  our  proclamation,  that  we  have  commissioned  our  gov- 
ernor (as  soon  as  the  state  and  circumstances  of  the  colony  will  admit) 
to  call  an  assembly  to  enact  laws,"  etc.  With  what  view  is  this  made? 
It  is  to  invite  settlers  and  subjects:  and  why  to  invite?  That  they 
might  think  their  properties,  etc.  more  secure  if  the  legislation  was 
vested  in  an  assembly,  than  under  a  governor  and  council  only. 

Next,  having  established  the  constitution,  the  proclamati-ju  of  the 
20th  March.  176-i.  invites  them  to  come  in  as  purchasers:  in  furtiier 
confirmation  of  all  this,  on  the  9th  April,  1764,  three  months  before 
July,  an  actual  commission  is  made  out  to  the  governor  to  call  an 
assembly  as  soon  as  the  state  of  the  island  would  admit  thereof.  You 
observe,  there  is  no  reservation  in  the  proclamation  of  any  legis- 
lature to  be  exercised  by  the  King,  or  by  the  governor  and  council 
under  his  authority  in  any  manner,  until  the  asseml)ly  should  meet; 
but  rather  the  contrary  :  for  whatever  construction  is  to  be  put  upon  it, 
which,  perhaps,  may  be  very  difficult  through  all  the  cases  to  which  it 
may  be  applied,  it  alludes  to  a  government  by  laws  in  being,  and  by 
courts  of  justice,  not  by  a  legislative  authority,  until  an  assembly 
should  be  called.  There  does  not  appear  from  the  special  verdict,  anv 
impediment  to  the  calling  an  assembly  immediately  on  the  arrival  of 
the  governor,  which  was  in  December,  1764.  But  no  assembly  was 
called  then  or  at  any  time  afterwards,  till  the  end  of  the  year  1765. 

We  therefore  think,  that  by  the  two  proclamations  and  the  commis- 
sion to  Governor  Melville,  the  King  had  immediately  and  irrecoverably 
granted  to  all  who  were  or  should  become  inhabitants,  or  who  had,  or 
should  acquire  propert}-  in  the  island  of  Grenada,  or  more  generally  to 
all  whom  it  might  concern,  that  the  subordinate  legislation  over  the 
island  should  be  exercised  by  an  assembly  with  the  consent  of  the  gov- 
ernor and  council,  in  like  manner  as  the  other  islands  belonging  to  the 
King. 

Therefore,  though  the  abolishing  the  duties  of  the  French  King  and 
the  substituting  this  tax  in  its  stead,  which  according  to  the  finding 
in  this  special  verdict  is  paid  in  all  the  British  Leeward  Islands,  is  just 
and  equitable  with  respect  to  Grenada  itself,  and  the  other  British 
Leeward  Islands,  yet,  through  the  inattention  of  the  King's  servants, 
in  inverting  the  order  in  which  the  instruments  sliould  have  passed, 


3ECT.    I.]  DOBREE    V.    NAI'IER.  61 

and  been  notoriously  published,  the  last  act  is  contradictory  to,  and  a 
violation  of  the  first,  and  is,  therefore,  void.  How  proper  soever  it 
may  be  in  respect  to  the  object  of  the  letters  patent  of  the  20th  July, 
1764,  to  use  the  words  of  Sir  Philip  Yorke  and  Sir  Clement  Weargc, 
'•  it  can  only  now  be  done,  by  the  assembly  of  the  island,  or  by  an  act 
of  the  Parliament  of  Great  Britain. " 

The  consequence  is,  judgment  must  be  given  for  the  plaintiff 


DOBREE   V.    NAPIER. 
Court  of  Common  Pleas.     1836. 
[Reported  2  Bingham's  New  Cases,  T81J. 

TiNDAL,  C.  J.^  The  plaintiffs  declare  in  this  action  against  the  two 
defendant's  for  seizing  and  taking  a  steam  vessel  of  the  plaintiffs,  and 
converting  the  same  to  their  use. 

The  defendants  sever  in  their  pleading,  but  each  puts  upon  the 
record  substantially  the  same  justification,  to  which  the  answers  given 
by  the  replication  are  the  same,  and  the  same  questions  of  law  are 
raised  thereon. 

It  will  be  sufficient,  therefore,  to  consider  the  case  as  it  is  raised 
upon  the  pleadings  with  respect  to  the  first-named  defendant.  Charles 

Napier. 

The  third  special  i)lea  of  the  defendant  Charles  Napier  alleges,  that 
as  a  servant  of  the  Queen  of  Portugal,  and  by  her  command,  lie  seized 
and  took  the  steam  vessel  of  the  plaintiffs  as  lawful  prize,  and  that 
such  proceedings  were  thereupon  had,  according  to  the  laws  of  Portugal, 
in  a  court  of  law  in  the  kingdom  of  Portugal  of  competent  jurisdiction 
in  that  behalf,  that  afterwai'ds,  in  and  by  the  said  court,  the  said  steam 
vessel  was  ijdjudged  to  have  been  justly  and  lawfully  taken,  and  was 
then  in  due  course  and  form  of  law  condemned  as  lawful  prize,  and  as 
forfeited  to  the  Queen  of  Portugal.  In  answer  to  this  plea,  the  plain- 
tiff in  his  replication  alleges  certain  facts,  which  bring  the  service  of 
the  defendant  Charles  Napier  under  the  Queen  of  Portugal,  upon  the 
occasion  in  question,  witliin  the  restrictions  of  the  statute  .59  O.  3.  c. 
69.  s.  2.,  generally  known  by  the  name  of  the  Foreign  Enlistment  Act; 
and  to  this  replication  the  defendant  demurred. 

We  think  it  is  perfectly  clear,  that,  except  for  the  facts  introduced 
by  the  replication,  the  plea,  standing  alone  and  unanswered,  would  be 
a  conclusive  bar  to  the  plainliff's  right  of  action.  The  sentence  of  a 
foreign  court  of  competent  jurisdiction,  condemning  a  neutral  vessel 
taken  in  war,  as  prize,  is  binding  and  conclusive  on  all  the  world  ;  and 

I  Thfi  opiiiion  only  is  given  ;  it  sufficiently  states  the  case.  Part  of  tlie  opinion,  in- 
volving a  different  question,  is  omitted.  —  Ed. 


62  DOBREE    V.    NAPIER.  [CHAP.    I. 

no  English  court  of  law  can  call  in  question  the  propriety',  or  the 
grounds,  of  such  condemnation.  It  is  sufficient  to  refer  to  the  case 
of  Hughes  V.  Cornelius  and  others,  Sir  T.  Ra^m.  473,  as  a  decisive 
authority  on  tliat  point.  It  follows  that  after  the  sentence  of  the  Court 
of  Lisbon,  it  cannot  be  controverted  in  this,  or  an}-  other  English  court, 
that  the  steam  vessel  was  rightly  taken  by  the  Queen  of  Portugal  as 
prize,  and  that  all  the  property  of  the  plaintiffs  therein  became,  by 
such  capture  and  condemnation,  forfeited  to  the  Queen,  and  vested  in 
her. 

But  the  plaintiffs  contend  that  the  replication,  b}-  the  facts  therein 
disclosed,  shows  that  the  service  of  tlie  defendant  Charles  Napier  under 
the  Queen  of  Portugal,  by  virtue  of  which  service  alone  he  justifies  the 
seizing  of  the  steam  vessel,  is  made  illegal  by  an  English  statute,  viz. 
the  statute  59  G.  3.  c.  69.,  and  that  such  illegality'  of  the  service  pre- 
vents him  from  making  any  justification  under  the  Queen  of  Portugal, 
and  renders  him  liable  to  all  the  damages  which  the  plaintiffs  have  sus- 
tained by  reason  of  the  seizure.  And  whether  the  conclusion  which 
the  plaintiflTs  draw  from  these  premises  is  the  just  conclusion  or  not, 
is  the  question  between  these  parties.  The  seizure  by  the  Queen  of 
Portugal  must  be  admitted  to  be  justifiable  ;  no  objection  can  be  taken 
against  the  forfeiture  of  the  propert}'  in  this  vessel  to  the  Queen,  under 
the  sentence  of  condemnation.  The  plaintiffs,  therefore,  in  contem- 
plation of  law,  have  sustained  no  legal  injury  b}'  reason  of  the  seizure. 
Again  no  one  can  dispute  the  right  of  the  Queen  of  Portugal,  to  appoint 
in  her  own  dominions,  the  defendant  or  an}-  other  person  she  may 
think  proper  to  select,  as  her  officer  or  servant,  to  seize  a  vessel  which 
is  afterwards  condemned  as  a  prize  ;  or  can  den^',  that  the  relation  of 
lord  and  servant,  de  facto,  subsists  between  the  Queen  and  the  defend- 
ant Napier.  For  the  Queen  of  Portugal  cannot  be  bound  to  take  any 
notice  of,  much  less  owe  an}-  obedience  to,  the  municipal  laws  of  this- 
country-.  Still,  however,  notwithstanding  the  loss  b}'  seizure  is  such, 
as  that  no  court  of  law  can  consider  it  an  injur}',  or  give  any  redress 
for  it ;  and  that  the  service  and  emploj'ment  of  the  defendant  is  a  ser- 
vice and  employment  de facto;  the  plaintiffs  contend  they  can  make 
the  servant  responsible  for  the  whole  loss,  onl}-  b}'  reason  of  his  being 
obnoxious  to  punishment  in  this  country,  for  having  engaged  in  such 
service.  No  case  whatever  has  been  cited  which  goes  the  length  of 
this  proposition ;  the  authorities  referred  to  establishing  only,  that 
where  an  act  prohibited  by  the  law  of  this  country  has  been  done,  the 
doer  of  such  illegal  act  cannot  claim  the  assistance  of  a  court  of  law  in 
this  countr}'  to  enforce  such  act,  or  any  benefit  to  be  derived  from  it, 
or  any  contract  founded  upon  it.  To  the  full  extent  of  these  authorities, 
we  entirely  accede  ;  but  we  cannot  consider  the  law  to  be,  that  where  the 
act  of  the  principal  is  lawful  in  the  country  where  it  is  done,  and  the 
authority  under  which  such  act  is  done  is  complete,  binding,  and  un- 
questionable there,  the  servant  who  does  the  act  can  be  made  responsible 
in  the  courts  of  this  country  for  the  consequence  of  such  act,  to  the  same 


SECT.  I.J  REGINA  V.    LESLEY.  63 

extent  as  if  it  were  originally  unlawful,  mereh'  b}-  reason  of  a  personal 
disability  imposed  by  the  law  of  tliis  country  upon  him,  for  contracting 
such  engagement.  Such  a  construction  would  effect  an  unreasonable 
alteration  in  the  situation  and  rights  of  the  plaintiffs  and  the  defendant. 
The  plaintiffs  would,  without  any  merit  on  their  part,  recover  against 
the  servant  the  value  of  the  property  to  which  they  had  lost  all  claim 
and  title  by  law  against  the  principal;  and  the  defendant,  instead  of 
the  measure  of  punishment  intended  to  be  inflicted  by  the  statute  for 
the  transgression  of  the  law,  miglit  be  made  liable  to  damages  of  an 
incalculable  amount.  Again,  the  only  ground  upon  which  the  authority 
of  the  servant  is  traversal)le  at  all  in  an  action  of  trespass,  is  no  more 
than  this  ;  to  protect  the  person  or  jMoperty  of  a  party  from  the  offi- 
cious and  wanton  interference  of  a  stranger,  where  the  principal  miglit 
have  been  willing  to  waive  his  rights.  It  is  obvious  that  the  full 
benefit  of  this  principle  is  secured  to  the  plaintiffs  by  allowing  a  traverse 
of  tlie  authority  de  facto,  without  permitting  them  to  impeach  it  by  a 
legal  objection  to  its  validity,  in  another  and  foreign  country.  And 
we  think  there  is  no  material  difference  between  the  third  and  the  first 
and  second  special  pleas  on  this  record.  For  as  we  hold  that  the  au- 
thority of  the  Queen  of  Portugal  to  be  a  justification  of  the  seizure  "as 
prize,"  there  is  as  little  doubt  but  that  she  might  direct  a  neutral  ves- 
sel to  be  seized  when  in  the  act  of  breaking  a  blockade  by  her  estab- 
lished, which  is  the  substance  of  the  first  special  plea,  or  of  supplying 
warlike  stores  to  her  enemies,  which  is  the  substance  of  the  second. 
We  therefore  give  judgment  on  the  first  three   special  pleas,  for  tho 

defendants. 

Judgment  for  Defendants.^ 


REGINA   V.  LESLEY 
Cbown  Case  Reserved.     1860. 
^Reported  Bell,  220  ;  8  Cox  C.  C.  269.] 
Erle,  C.  J.'^     In  this  case  the  question  is  whether  a  conviction  for 
false  imprisonment  can  be  sustained  upon  the  following  facts. 

The  prosecutor  and  others,  being  in  Chili,  and  subjects  of  that  state, 
were  banished  by  the  government  from  Chili  to  England. 

1  See  UnderliiU  v.  Hernandez,  168  U.  S.  250.  —  En. 

2  The  opinion  only  is  f,'iven.  In  addition  to  the  facts  therein  stated,  the  following 
may  be  useful :  — 

It  appeared  by  the  evidence  for  the  prosecution  that  the  prisoners  rerpu'sted  the 
defendant  to  take  them  to  Peru,  which  was  near,  olferiiif;  to  pay  him  what  the  Govern- 
ment of  Chili  paid  him,  Imt  that  the  (h^fendant  refused,  on  the  ground  tiiat  his  contract 
required  him  to  carry  the  prisoners  to  Liverpool.  They  made  no  other  leipiest  to  be 
put  ashore.  The  vessel  touched  at  the  Azores,  and  the  defendant  made  holes  in  the 
boats  to  prevent  the  escape  of  the  prisoners. 

Watson,  P>.,  who  tried  the  case,  directed  a  verdict  of  guilty,  and  reported  the  ca.se 
to  the  Court  for  Crown  Cases  Reserved.  —  Ed. 


flsicJ\ 


64  EEGINA   V.   LESLEY.  [CHAP.    I. 

The  defendant,  being  master  of  an  English  merchant  vessel  lying  in 
the  territorial  waters  of  Chili,  near  Valparaiso,  contracted  with  that 
government  to  take  the  prosecutor  and  his  companions  from  Valparaiso 
to  Liverpool,  and  they  were  accordingly  brought  on  board  the  defen- 
dant's vessel  by  the  officers  of  the  government  and  carried  to  Liverpool 
b}'  the  defendant  under  his  contract.  Then,  can  the  conviction  be 
sustained  for  that  which  was  done  within  the  Chilian  waters?  We 
answer  no. 

We  assume  that  in  Chili  the  act  of  the  government  towards  its  sub- 
jects was  lawful ;  and  although  an  English  ship  in  some  respects  carries 
with  her  the  laws  of  her  countiy  in  the  territorial  waters  of  a  foreign 
state,  yet  in  other  respects  she  is  subject  to  the  laws  of  that  state  as  to 
acts  done  to  the  subjects  thereof. 

We  assume  that  the  government  could  justify  all  that  it  did  within 
its  own  territory,  and  we  think  it  follows  that  the  defendant  can  justify 
all  that  he  did  there  as  agent  for  the  government  and  under  its  author- 
ity. In  Dobree  v.  Napier,  2  Bing.  N.  C  781,  the  defendant,  on  behalf 
of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass  ;  and  judgment  was  for  the  defendant,  because  the  Queen  of 
Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and  to 
employ  whom  she  would  to  make  the  seizure  ;  and  therefore  the  defend- 
ant, though  an  Englishman  seizing  an  English  vessel,  could  justif}'  the 
act  under  the  employment  of  the  Queen. 

We  think  that  the  acts  of  the  defendant  in  Chili  become  lawful  on 
the  same  principle,  and  therefore  no  ground  for  the  conviction. 

The  further  question  remains.  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory?  And  we  think  it  can. 
It  is  clear  that  an  P^nglish  ship  on  the  high  sea,  out  of  any  foreign 
territory,  is  subject  to  the  laws  of  ICngland  ;  and  persons,  whether  for- 
eio-n  or  English,  on  board  such  ship,  are  as  much  amenable  to  English 
law  as  they  would  be  on  English  soil.  In  Regina  v.  Sattler,  1  D.  &  B. 
C.  C.  525,  this  principle  w\as  acted  on,  so  as  to  make  the  prisoner,  a  for- 
eigner, responsible  for  murder  on  board  an  English  ship  at  sea.  The 
same  principle  has  been  laid  down  by  foreign  writers  on  international 
law,  among  which  it  is  enough  to  cite  Ortolan,  "  Sur  la  Diplomatic  de 
la  Mer,"  liv.  2.  cap.  13. 

The  Merchant  Shipping  Act,  17  &  18  Vict.  c.  104,  s.  267,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  Majesty's  dominions 
as  if  they  had  been  committed  within  the  jurisdiction  of  the  Admiralty 
of  England. 

Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a  false 
imprisonment  he  was  liable  to  be  convicted.  Now,  as  the  contract  of 
the  defendant  was  to  receive  the  prosecutor  and  the  others  as  prisoners 
on  board  his  ship,  and  to  take  them,  without  their  consent,  over  the  sea 
to  England,  although  he  was  justified  in  first  receiving  them  in  Chili, 


SECT.    II.]  BLANKARD   V.    GALDY.  65 

yet  that  justification  ceased  when  he  passed  the  line  of  ChiHan  juris- 
diction, and  after  that  it  was  a  wrong  which  was  intentionally  planned 
and  executed  in  pursuance  of  the  contract,  amounting  in  law  to  a  false 
imprisonment. 

It  ma}'  be  that  transportation  to  England  is  lawful  b}'  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian  sub- 
jects ;  but  for  an  English  ship  the  laws  of  Chili,  out  of  the  state,  are 
powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  English  law. 

For  these  reasons,  to  the  extent  above  mentioned,  the  conviction  is 
affiiined.  Conviction  conjirmed  accordingly. 


Lord  Mansfield,  C.  J.,  in  Rex  v.  Vaughan,  4  Burr.  2494,  2500 
(1769).  The  argument  is  strong  that  these  statutes  do  not  extend 
to  Jamaica,  though  they  were  enacted  long  before  that  island  belonged 
to  the  Crown  of  England.  If  Jamaica  was  considered  as  a  conquest, 
they  would  retain  their  old  laws,  till  the  conqueror  had  thought  fit  to 
alter  them.  If  it  is  considered  as  a  colony  (which  it  ought  to  be,  the 
old  inhabitants  having  left  tiie  island),  then  these  statutes  are  positive 
regulations  of  police,  not  adapted  to  the  circumstances  of  a  new  colony  ; 
and  therefore  no  part  of  that  law  of  England  which  every  colony  from 
necessity  is  supposed  to  carry  witli  thein  at  their  first  plantation.  No 
Act  of  Parliament  made  after  a  colony  is  planted  is  construed  to 
extend  to  it,  without  express  words  showing  the  intention  of  the 
legislature  to  be  '  that  it  should.* 


^./»v\)L 


SECTION  II. 

THE   ORIGIN    AND    CHAXGP:    OF    LAW. 


Hfi.^ 


BLANKARD  v.  GALDY. 
King's   Bench.     1G93. 
[Reported  2  Salkeld,  AU.] 

In  debt  on  a  bond,  the  defendant  prayed  oj-er  of  the  condition,  and 
pleaded  the  statute  E.  G.  against  buying  offices  concerning  the  admin- 
istration of  justice  ;  and  averred,  That  this  bond  was  given  for  the 
purchase  of  the  oflBce  of  provost-marshal  in  Jamaica,  and  that  it  con- 
cerned the  administration  of  justice,  and  tliat  Jamaica  is  part  of  the 
revenue  and  possessions  of  the  Crown  of  England  :  Tlie  plaintiif  replied, 


66  BLANKARD  V.    GALDY.  [CHAP.  L 

that  Jamaica  is  an  Island  bej'ond  the  seas,  which  was  conquered  from 
the  Indians  and  Spaniards  iu  Queen  P^lizabetli's  time,  and  the  inhabit- 
ants are  governed  by  their  own  laws,  and  riot  b}-  the  laws  of  England  : 
The  defendant  rejoined,  That  before  such  conquest  they  were  governed 
hy  their  own  laws ;  but  since  that,  bv  the  laws  of  England :  Shower 
argued  for  the  plaintiff,  that,  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  an  appeal  to  the  Council ;  and  as  they  are 
not  represented  in  our  Parliament,  so  they  are  not  bound  by  our  stat- 
utes, unless  specially  named.  Vide  And.  115.  Pemberton  contra 
argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights,  and  prop- 
erties are  quite  lost ;  that  by  consequence  their  laws  are  lost  too,  for 
the  law  is  but  the  rule  and  guard  of  the  other  ;  those  that  conquer,  can- 
not by  their  victory  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  thej-  were  not  under  the  same  law.  Et  per  Holt, 
C.  J.  &  Cur., 

First,  in  case  of  an  uninhabited  countrj'  newlj-  found  out  b}-  English 
subjects,  all  laws  in  force  in  England  are  in  force  there  ;  so  it  seemed 
to  be  agreed. 

Secondly',  Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England  ;  yet 
retain  their  ancient  laws  :  That  in  Davis  36.  it  is  not  pretended,  that 
the  custom  of  tanistr}'  was  determined  by  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  there  after  the  conquest:  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  countr}' ;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force  :  That  if 
our  law  did  take  place,  3"et  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  be  altered  b}'  theirs  in  particulars;  also 
the}'  held,  that  in  the  case  of  an  infidel  country,  their  laws  In'  conquest 
do  not  entirel}'  cease,  but  onh'  such  as  are  against  the  law  of  God  ;  and 
that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgment  pro  quer.*- 

1  Another  report  of  the  same  case  may  be  found  in  4  Mod.  222.  In  th;it  case  the 
Court  is  reported  to  have  said  :  "  And  therefore  it  was  lield,  that  Jamaica  was  not  gov- 
erned by  the  laws  of  England  after  the  conquest  thereof,  till  new  laws  were  made  :  for 
they  had  neither  sheriff  or  counties;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned.  In  Barbadoes  all  freeholds  are 
subject  to  debts,  and  are  esteemed  as  chattels  till  the  creditors  are  satisfied,  and  then 
the  lands  descend  to  an  heir;  but  the  law  is  otherwise  here  ;  which  shows  that  though 
that  island  is  parcel  of  the  possessions  of  England,  yet  it  is  not  governed  by  the  laws 
made  here,  but  by  their  own  particular  laws  and  customs." 

Ace.  Earl  Derby's  Case,  2  And.  116  ;  Mem-  2  P.  Wms.  75.  See  Cross  v.  Harrison, 
16  How.  161;  Airiiart  v.  Massieu,  98  U.  S.  491.  —  Ei). 


SECT.    II. ■(      ADVOCATE-GENERAL    V.   RANEE    SURNO.MtiYE    DOSSEE.        67 


THE  ADVOCATE-GENERAL  OF  BENGAL   v.   RANEE 
SURNOMOYE   DOSSEE. 

Judicial  Committee  of  the  Privy  Council.     1863. 
{^Reported  2  Moore's  Privi/  Council,  new  series,  22.  ] 

Their  Lordships'  judgment  was  now  delivered  b^-  The  Right  Hon. 
Lord  Kingsdown. 

The  question  in  this  case  aiises  on  the  claim  of  the  Crown  to  a  por- 
tion of  the  personal  estate  of  Rajali  Kistonantli  Roy,  who  destroyed 
himself  in  Calcutta  on  the  31st  of  October,  1844,  and  was  found  b3' 
inquisition  to  have  been  /"elo  de  se. 

We  understand  that  the  Rajah  had  a  residence  in  Calcutta,  though 
his  Raj,  or  Zemindary,  was  at  some  distance  from  that  cit^.  He  was 
a  Hindoo  both  by  birtli  and  religion. 

On  the  morning  of  the  day  on  which  he  destroyed  himself  he  made 
a  will,  bv  which  he  left  a  large  portion  of  his  property  to  the  East 
India  Company  for  charitable  purposes. 

The  will  was  disputed  by  his  widow,  who  was  his  heiress,  and  a  suit 
was  instituted  b}'  her  against  the  East  India  Compan}'  and  others,  to 
determine  its  validit3'.  It  was  agreed  between  the  litigating  parties 
that  the  question  should  be  tried  by  an  issue  at  law.  The  widow  in- 
sisted, amongst  other  objections,  that  the  testator  was  not  in  a  fit  state 
of  mind  to  make  a  will  at  the  time  of  its  execution. 

The  issue  was  tried,  and  a  verdict  was  found  by  the  judges  against 
the  will,  upon  what  ground  does  not  distinctly  appear,  and  the  verdict 
was  acquiesced  in  by  the  Indian  Government. 

If  the  Crown,  b\'  virtue  of  the  inquisition,  was  entitled  to  all  the  per- 
sonal propert}'  of  the  Rajah,  the  validity  or  invalidity  of  the  will  was, 
as  regards  his  personal  estate,  of  no  importance. 

Now,  the  inquisition  had  found  that  the  goods  and  chattels  of  the 
Rajah  when  he  committed  self-murder  amounted  witliin  Calcutta  to 
Rs.  9,  87,  0G.3,  and  without  the  town  of  Calcutta  to  Rs.  2,  8'J,  500; 
and  it  stated  that  all  his  property  was  claimed  by  the  widow. 

No  claim  of  any  part  of  it  api)ears  at  that  time  to  have  been  set  up 
by  the  East  India  Company  on  behalf  of  the  Crown,  and  very  large 
sums  were  from  time  to  time,  by  the  order,  or  with  the  consent  of  the 
Indian  Government,  paid  over  to  the  widow  in  the  years  184  0  and  1847. 

A  portion,  however,  of  the  Rajah's  personal  estate,  amounting  to 
between  six  and  seven  lacs  of  Rupees,  was  secured  in  the  Supreme 
Court,  in  order  to  provide  for  the  payment  of  life  .'uinuities  to  two 
ladies,  both  then  living.  The  existence  of  these  charges  seems  to 
have  been  the  only  reason  wh}'  this  fund  was  not  transferred  to  the 
widow  with  the  rest  of  the  estate. 

One  of  the  annuitants  is  now  dead,  and  the  fund  reserved  to  answer 


68        ADVOCATE-GENERAL   V.    RANEE   SURNOMOYE    DOSSEE.       [CHAP.    I. 

her  annuity  is  of  course  set  free.  This  fund  is  now  claimed  by  the 
Indian  Government  under  the  finding  on  the  inquisition  of  1844. 

It  is  stated  in  the  affidavit  of  a  gentleman  who  was  manager  for  the 
widow  on  the  death  of  her  husband,  that  he  was  advised  in  1844,  In- 
three  English  counsel  of  eminence,  whom  he  names,  that  the  verdict 
on  the  inquisition  might  be  set  aside  on  the  ground  both  of  misdirec- 
tion by  the  coroner,  and  as  being  against  the  weight  of  evidence,  but 
that  proceedings  were  not  taken  for  that  purpose,  because  the  govern- 
ment represented,  through  its  law  agents,  that  no  claim  would  ever  be 
made  under  the  verdict. 

If  the  facts  be  such  as  we  have  stated,  it  is  impossible  not  to  feel 
some  surprise  at  the  present  demand  ;  and,  if  we  differed  from  the 
court  below,  it  would  deserve  much  consideration,  whether  a  claim 
which  seems  to  have  been  abandoned  in  1844,  ought  now  to  be  enter- 
tained. But  these  facts  do  not  seem  to  have  been  noticed  by  the 
judges  in  India;  there  may  possibly  be  circumstances  with  which  we 
are  unacquainted  to  account  for  the  course  taken  by  the  government, 
and  we  think  it  better  to  dispose  of  the  case  on  the  merits. 

At  what  time  then,  and  in  what  manner,  did  the  forfeiture  attached 
by  the  law  of  England  to  the  personal  property  of  persons  committing 
suicide  in  that  countr}-,  become  extended  to  a  Hindoo  committing  the 
same  act  in  Calcutta? 

The  sum  of  the  appellant's  argument  was  this :  that  the  English 
Criminal  Law  was  applicable  to  natives  as  well  as  Europeans  within 
Calcutta,  at  the  time  when  the  death  of  the  Rajah  took  place,  and  the 
sovereignty'  of  the  English  Crown  was  at  that  time  established  ;  that 
the  English  settlers  when  thej'  first  went  out  to  tiie  East  Indies  in  the 
reign  of  Queen  Elizabeth  took  with  them  the  whole  law  of  England, 
both  civil  and  criminal,  unless  so  far  as  it  was  inapplicable  to  them  in 
their  new  condition  ;  that  the  law  of felo  de  se  was  a  part  of  the  crimi-^ 
nal  law  of  England  which  is  not  inapplicable  to  them  in  their  new  con- 
dition, and  that  it,  therefore,  became  part  of  the  law  of  the  country. 

Where  Englishmen  establish  themselves  in  an  uninhabited  or  bar- 
barous country,  they  carry  with  them  not  only  the  laws,  but  the  sove- 
reignty of  their  own  State ;  and  those  who  live  amongst  them  and 
become  members  of  their  community  become  also  partakers  of,  and 
subject  to  the  same  laws. 

But  this  was  not  the  nature  of  the  first  settlement  made  in  India  — 
it  was  a  settlement  made  by  a  few  foreigners  for  the  purposes  of  trade 
in  a  very  populous  and  highlj'  civilized  country,  under  the  government 
of  a  powerful  Mohammedan  ruler,  with  whose  sovereignty  the  English 
Crown  never  attempted  nor  pretended  to  interfere  for  some  centuries 
afterwards. 

If  the  settlement  had  been  made  in  a  Christian  countr}-  of  Europe, 
the  settlers  would  have  become  subject  to  the  laws  of  the  country-  in 
which  the}'  settled.  It  is  true  that  in  India  they  retained  their  own 
laws  for  their  own  government  within  the  factories,  which  they  were 


SECT.    II.]       ADVOCATE-GENERAL    V.    RANEE    SUKNOMOYE    DOSSEE.         69 

permitted  by  the  ruling  powers  of  India  to  establish  ;  but  this  was  not 
on  the  ground  of  general  internationivl  law,  or  because  the  Crown  of 
England  or  the  laws  of  England  had  any  proper  authority  in  India,  but 
upon  the  principles  explained  by  Lord  Stowell  in  a  very  celebrated  and 
beautiful  passage  of  his  judgment  in  the  ease  of  "  The  Indian  Chief." 
(3  Rob.  Adm.  Rep.  28). 

The  laws  and  usages  of  Eastern  countries  where  Christianitj-  does 
not  prevail  are  so  at  variance  with  all  the  principles,  feelings,  and 
habits  of  European  Christians  that  they  have  usually  been  allowed  by 
the  indulgence  or  weakness  of  the  potentates  of  those  countries  to  re- 
tain the  use  of  their  own  laws,  and  their  factories  have  for  many  pur- 
poses been  treated  as  i)art  of  the  territor}-  of  the  Sovereign  from  whose 
dominions  they  come.  But  the  permission  to  use  their  own  laws  b}- 
European  settlers  does  not  extend  those  laws  to  natives  within  the 
same  limits,  who  remain  to  all  intents  and  purposes  subjects  of  their 
own  Sovereign,  and  to  whom  European  laws  and  usages  are  as  little 
suited  as  the  laws  of  the  Mohammedans  and  Hindoos  are  suited  to  Euro- 
peans. These  principles  are  too  clear  to  require  any  authority  to  sup- 
port them,  but  they  are  recognized  in  the  judgment  to  which  we  have 
above  referred. 

But,  if  the  English  laws  were  not  applicable  to  Hindoos  on  the  first 
settlement  of  the  countr}',  how  could  the  subsequent  acquisition  of  the 
rights  of  sovereignty  by  the  English  Crown  make  any  alteration?  It 
might  enable  the  Crown  bj'  express  enactment  to  alter  the  laws  of  the 
country,  but  until  so  altei'ed  the  laws  remained  unchanged.  The  ques- 
tion, therefore,  and  the  sole  question  in  this  case  is,  whether  bv  ex- 
press enactment  the  English  law  of /elo  de  se,  including  the  forfeiture 
attached  to  it,  had  been  extended  in  the  year  1844  to  Hindoos  destroy- 
ing themselves  in  Calcutta. 

We  were  referred  by  Mr.  Melvill,  in  his  very  able  argument,  to  the 
charter  of  Charles  II.  in  1661,  as  the  first,  and  indeed  the  only  one 
which  in  express  terms  introduces  English  law  into  the  P^ast  Indies. 
It  gave  authority  to  the  company  to  appoint  governors  of  the  several 
places  where  they  had  or  should  have  factories,  and  it  authorized  such 
governors  and  their  council  to  judge  all  persons  belonging  to  the  said 
compan}',  or  that  should  live  under  them,  in  all  causes,  whether  civil 
or  criminal,  according  to  the  laws  of  the  kingdom  of  England,  and  to 
execute  judgment  accordingly. 

The  English  Crown,  however,  at  this  time  clearly  had  no  jurisdiction 
over  the  native  subjects  of  the  Mogul,  and  the  charter  was  admitted  by 
Mr.  Melvill  fas  we  understood  him)  to  apply  only  to  the  I-Curopean  ser- 
vants of  the  company  ;  at  all  events  it  could  have  no  application  to  the 
question  now  under  consideration.  The  English  law,  civil  and  crimi- 
nal, has  been  usually  considered  to  have  been  made  applicable  to 
natives,  within  the  limits  of  Calcutta,  in  the  year  1726,  by  the  charter, 
13th  Geo.  I.  Neither  that  nor  the  subsequent  charters  expressly  de- 
clare that  the  English  law  shall  be  so  applied,  but  it  seems  to  have 


70        ADVOCATE-GENEllAL    V.   EANEE    SURNOMOYE    DOSSEE.       [CHAP.    I. 

been  held  to  be  the  necessary  consequence  of  the  provisions  contained 
in  them. 

But  none  of  these  charters  contained  anj-  forms  applicable  to  the 
punishment,  b}-  forfeiture  or  otherwise,  of  the  crime  of  self-murder, 
and  with  respect  to  other  offences  to  which  the  charters  did  extend, 
the  application  of  the  Criminal  law  of  P^ngland  to  natives  not  Chris- 
tians, to  Mohammedans  and  Hindoos,  has  been  treated  as  subject  to 
qualifications  without  which  the  execution  of  tlie  law  would  have  been 
attended  with  intolerable  injustice  and  cruelty. 

To  apply  the  law  which  punishes  the  marrying  a  second  wife  whilst 
the  first  is  living,  to  a  people  amongst  whom  jwlygamy  is  a  recognized 
institution,  would  have  been  monstrous,  and  accordingly  it  has  not  been 
so  applied. 

In  like  manner,  the  law,  which  in  England  most  justly  punishes  as  a 
heinous  offence,  the  carnal  knowledge  of  a  female  under  ten  years  of 
age,  cannot  with  any  propriety  be  applied  to  a  country  where  puberty 
commences  at  a  much  earlier  age,  and  where  females  are  not  unfre- 
quently  married  at  the  age  of  ten  years. 

Accordingly,  in  the  case  referred  to  in  the  argument,  the  law  was 
held  not  to  apply. 

Is  the  law  of  forfeiture  for  suicide  one  which  can  be  considered  prop- 
erly applicable  to  Hindoos  and  Mohammedans? 

The  grounds  on  which  suicide  is  treated  in  England  as  an  offence 
against  the  law,  and  punished  by  forfeiture  of  the  offender's  goods  and 
chattels  to  the  King,  are  stated  more  fully  in  the  case  of  Hales  v.  Petit, 
in  Plowden's  Reports,  p.  261,  than  in  any  other  book  which  we  have 
met  with.  It  is  there  stated  that  it  is  an  offence  against  nature,  against 
God,  and  against  the  King.  Against  nature,  because  against  the  in- 
stinct of  self-preservation  ;  against  God,  because  against  the  command- 
ment, "  Thou  Shalt  not  kill,"  and  a/eZo  de  se  kills  his  own  soul ;  against 
the  King,  in  that  thereby  he  loses  a  subject. 

Can  these  considerations  extend  to  native  Indians,  not  Christians, 
not  recognizing  the  authority  of  the  Decalogue,  and  owing  at  the  time 
when  this  law  is  supposed  to  have  been  introduced  no  allegiance  to  the 
King  of  Great  Britain? 

The  nature  of  the  punishment  also  is  very  little  applicable  to  such 
persons.  A  part  of  it  is,  that  the  body  of  the  offender  shall  be  de- 
prived of  the  rites  of  Christian  burial  in  consecrated  ground.  The  for- 
feiture extends  to  chattels  real  and  personal,  but  not  to  real  estates ; 
these  distinctions,  at  least  in  tlie  sense  in  which  they  are  under 
stood  in  England,  not  being  known  or  intelligible  to  Hindoos  and 
Mohammedans. 

Self-destruction,  though  treated  by  the  law  of  England  as  murder, 
and  spoken  of  in  the  case  to  which  we  have  referred  in  Plowden  as 
the  worst  of  all  murders,  is  really,  as  it  affects  society,  and  in  a  moral 
and  religious  point  of  view,  of  a  character  very  different  not  only  from 
all  murders  but  from  all  other  felonies.     These  distinctions  are  pointed 


SECT.    II.]      ADVOCATE-GEXERAL   V.    RANEE    SUKXOMOYE    DOSSEE.        71 

out  with  great  force  and  clearness  in  the  notes  attached  to  the  Indian 
code,  as  originall}-  prepared  by  Lord  Macaulay  and  the  other  Commis- 
sioners. The  truth  is,  that  the  act  is  one  which  in  countries  not  in- 
fluenced by  tlie  doctrines  of  Christianity  has  been  regarded  as  deriving 
its  moral  character  altogether  from  the  circumstances  in  which  it  is 
committed:  sometimes  as  blameable,  sometimes  as  justifiable,  some- 
times as  meritorious,  or  even  an  act  of  positive  duty. 

In  tills  ligiit  suicide  seems  to  have  been  viewed  by  the  founders  of 
the  Hindoo  Code,  who  condemn  it  in  ordinary  cases  as  forbidden  by 
their  religion  ;  but  in  others,  as  in  the  well-known  instances  of  Suttee 
and  self-immolation  under  the  car  of  Juggernaut,  treat  it  as  an  act  of 
great  religious  merit. 

We  think,  therefore,  the  law  under  consideration  inapplicable  to 
Hindoos,  and  if  it  had  been  introduced  b}-  the  charters  in  question 
with  respect  to  P^uropeans,  we  should  think  that  Hindoos  would  have 
been  excepted  from  its  operation.  But  that  it  was  not  so  introduced 
appears  to  us  to  be  shown  by  the  admirable  judgment  of  Sir  Barnes 
Peacock  in  this  case  ;  and  if  it  were  not  so  introduced,  then  as  regards 
natives,  it  never  had  an}'  existence. 

It-  would  not  necessarily  follow  that,  therefore,  it  never  had  existed 
as  regards  Europeans.  That  question  would  depend  upon  this,  whether, 
when  the  original  settlers,  under  the  protection  of  their  own  Sovereign, 
were  governed  by  their  own  laws,  those  laws  included  the  one  now 
under  consideration  ;  whether  an  offence  of  this  description  was  an 
offence  against  the  King's  peace,  for  which  he  was  entitled  to  claim 
forfeiture  ;  whether  the  factor}'  could  for  this  purpose  be  considered  as 
within  his  jurisdiction.  In  that  case  it  might  be  that  the  subsequent 
appointment  of  coroners  by  the  Act  of  the  33rd  Geo.  III.  would  render 
effectual  a  right  previously  existing,  but  for  the  recovery  of  which  no 
adequate  remedy  had  been  previously  provided. 

We  are  not  quite  sure  whether  the  court  below  intended  to  deter- 
mine this  point  or  not.  Much  of  the  reasoning  in  the  judgment  is 
applicable  to  Europeans  as  well  as  to  natives,  but  the  Chief  Justice  in 
his  judgment  says  :  "  At  present  we  have  merely  to  consider  the  ques- 
tion, so  far  as  it  relates  to  the  goods  and  chattels  of  a  native  who  wil- 
fully and  intentionally  destroys  himself,  and  who  cannot  in  strictness 
be  called  a^felo  de  se ;  and  we  now  proceed  to  deal  with  that  question, 
and  -with  that  question  alone." 

The  point  so  decided  we  think  perfectly  clear,  and  it  is  not  necessary 
to  go  further.  Since  the  new  code,  whicli  confines  the  penalty  of  for- 
feiture within  much  narrower  limits  than  existed  previously  to  its 
enactment,  and  does  not  extend  it  to  the  property  of  persons  com- 
mitting suicide,  the  case  can  hardly  again  arise. 

We  have  no  doubt  that  it  is  our  duty  in  this  case  humbly  to  advise 
Her  Majesty  to  dismiss  the  api)eal,  with  costs. 


72  COMMONWEALTH    V.    CHAPMAN.  [CHAP.    I. 


COMMONWEALTH  v.    CHAPMAN. 
Supreme  Judicial  Court  of  Massachusetts.      1848. 

[Reported  13  Metcalj]  68.] 

Shaw,  C.  J.  This  was  an  indictment  against  the  defendants  for  a 
false  and  malicious  libel,  tded  before  the  Coiut  of  Common  Pleas,  and, 
upon  a  conviction  there,  the  case  is  brought  before  this  court,  upon  an 
exception  which  has  been  most  elaborately  argued  by  the  learned 
counsel  for  the  defendants,  and  which,  if  sustained,  must  go  to  the 
foundation  of  the  prosecution  ;  namely,  that  there  is  no  law  of  this 
Commonwealth  by  which  the  writing  and  publishing  of  a  malicious  libel 
can  be  prosecuted  by  indictment,  and  punished  as  an  offence.  The 
proposition  struck  us  with  great  surprise,  as  a  most  startling  one  ;  but 
as  it  was  seriously  presented  and  earnestly  urged  in  arguiiient,  we  felt 
bound  to  listen,  and  give  it  the  most  careful  consideration;  but  after 
the  fullest  deliberation,  we  are  constrained  to  say,  that  we  can  enter- 
tain no  more  doubt  upon  the  point  than  we  did  when  it  was  first 
offered. 

It  is  true  that  there  is  no  statute  of  the  Commonwealth  declaring  the 
writing  or  publishing  of  a  written  libel,  or  a  malicious  libel,  by  signs 
and  pictures,  a  punishable  offence.  But  this  goes  little  way  towards 
settling  the  question.  A  great  part  of  the  municipal  law  of  Massa- 
chusetts, both  civil  and  criminal,  is  an  unwritten  and  traditionary  law. 
It  has  been  common  to  denominate  this  "the  common  law  of  Eng- 
land," because  it  is  no  doubt  true  that  a  large  portion  of  it  has  been 
derived  from  the  laws  of  England,  either  the  common  law  of  Elngland, 
or  those  English  statutes  passed  before  the  emigration  of  our  ancestors, 
and  constituting  a  part  of  that  law,  by  which,  as  English  subjects,  they 
were  governed  when  they  emigrated  ;  or  statutes  made  afterwards,  of  a 
general  nature,  in  amendment  or  modification  of  the  common  law, 
which  were  adopted  in  the  colony  or  province  by  general  consent. 

In  addition  to  these  sources  of  unwritten  law,  some  usages,  growing 
out  of  the  peculiar  situation  and  exigencies  of  the  earlier  settlers  of 
Massachusetts,  not  traceable  to  any  written  statute  or  ordinance,  but 
adopted  by  general  consent,  have  long  had  the  force  of  law  ;  as,  for 
instance,  the  convenient  practice,  by  which,  if  a  married  woman  join 
with  her  husband  in  a  deed  conveying  land  of  which  she  is  seized  in 
her  own  right,  and  simpl}-  acknowledge  it  before  a  magistrate,  it  shall 
be  valid  to  pass  her  land,  without  the  more  expensive  process  of  a  fine, 
required  by  the  common  law.  Indeed,  considering  all  these  sources  of 
unwritten  and  traditionarj'  law,  it  is  now  more  accurate,  instead  of  the 
common  law  of  England,  which  constitutes  a  part  of  it,  to  call  it  col- 
lectivel}'  the  common  law  of  Massachusetts. 

To  a  very  great  extent,  the  unwritten  law  constitutes  the  basis  of  our 
jurisprudence,  and  furnishes  the  rules  by  which  public  and  private  rights 


SECT..  II.]  COMMONWEALTH   V.   CHAPMAN.  73 

are  established  and  secured,  the  social  relations  of  all  persons  regulated, 
their  rights,  duties,  and  obligations  determined,  and  all  violations  of 
duty  redressed  and  punished.  Without  its  aid,  the  written  law,  em- 
bracing the  constitution  and  statute  laws,  would  constitute  but  a  lame, 
partial,  and  impracticable  system.  Even  in  many  cases,  where 
statutes  have  been  made  in  respect  to  particular  subjects,  they  could 
not  be  carried  into  etfect,  and  must  remain  a  dead  letter,  without  the 
aid  of  the  common  law.  In  cases  of  murder  and  manslaughter,  the 
statute  declares  the  punishment ;  but  what  acts  shall  constitute  murder, 
what  manslaughter,  or  what  justifiable  or  excusable  homicide,  are  left 
to  be  decided  by  the  rules  and  principles  of  the  common  law.  So,  if 
an  act  is  made  criminal,  but  no  mode  of  prosecution  is  directed,  or  no 
punishment  provided,  the  common  law  furnishes  its  ready  aid,  pre- 
scribing the  mode  of  prosecution  by  indictment,  the  common  law 
punishment  of  fine  and  imprisonment.  Indeed,  it  seems  to  be  too 
obvious  to  require  argument,  that  without  the  common  law,  our  legis- 
lation and  jurisprudence  would  be  impotent,  and  wholly  deficient  in 
completeness  and  symmetr\-,  as  a  system  of  municipal  law. 

It  will  not  be  necessary  here  to  consider  at  large  the  sources  of  the 
unwritten  law,  its  authority  as  a  binding  rule,  derived  from  long  and 
general  acquiescence,  its  provisions,  limits,  qualifications,  and  excep- 
tions, as  established  by  well  authenticated  usage  and  tradition.  It  is 
suflScient  to  refer  to  1  Bl.  Com.  63  et  seq. 

If  it  be  asked,  ^'  How  are  these  customs  or  maxims,  constituting  the 
common  law  to  be  known,  and  by  whom  is  their  validity  to  be  deter- 
mined?" Blackstone  furnishes  the  answer;  "by  the  judges  in  the 
several  courts  of  justice.  They  are  the  depositaries  of  the  laws,  the 
livino-  oracles,  who  must  decide  in  all  cases  of  doubt,  and  who  are 
bound  by  oath  to  decide  according  to  the  law  of  the  land.  Their 
knowledge  of  that  law  is  derived  from  experience  and  study,"  "  and 
from  being  long  personally  accustomed  to  the  judicial  decisions  of 
their  predecessors."     1  Bl.  Com.  69. 

Of  course,  in  coming  to  any  such  decision,  judges  are  bound  to 
resort  to  tlie  best  sources  of  instruction,  such  as  the  records  of  courts 
of  justice,  well  authenticated  histories  of  trials,  and  books  of  reports, 
digests,  and  brief  statements  of  sucli  decisions,  prepared  by  suitable 
persons,  and  the  treatises  of  sages  of  the  profession,  whose  works  have 
an  established  reputation  for  correctness. 

That  there  is  such  a  thing  as  a  common  or  unwritten  law  of  Massa- 
chusetts, and  that,  when  it  can  be  autlieiitically  established  and  sus- 
tained, it  is  of  equal  authority  and  binding  force  with  the  statute  law, 
seems  not  seriously  contested  in  the  argument  before  us.  But  it  is 
urged  that,  in  the  range  and  scope  of  this  unwritten  law,  there  is  no 
provision  wiiich  renders  the  writing  or  publishing  of  a  malicious  liliel 
punishable  as  a  criminal  offence. 

The  stress  or  r,no  argument  of  the  learned  counsel  is  derived  from  a 
supposed  qualification  <j1"  the  general  proposition  in  the  constitution  oi 


74  COMMONWEALTH    V.    CHAPMAN.  [CHAP.    I. 

Massachusetts,  usuall}-  relied  ou  in  proof  of  the  continuance  ni  force 
of  the  rules  and  principles  of  the  common  law,  as  the3'  existed  before 
the  adoption  of  the  constitution.  The  clause  is  this:  Chap.  6,  Art.  1, 
Sect.  6  :  "  All  the  laws  which  have  been  adopted,  used,  and  approved  in 
the  province,  colony,  or  state  of  Massachusetts  Bay  and  usually  prac- 
tised on  in  the  courts  of  law,  shall  still  remain  and  be  in  full  force 
until  altered  or  repealed  by  the  legislature ;  such  parts  only  excepted 
as  are  repugnant  to  the  rights  and  liberties  contained  in  this 
constitution." 

It  is  then  argued,  that  it  is  in  virtue  of  this  clause  of  the  constitu- 
tion that  the  common  law  of  England,  and  all  other  laws  existing 
before  the  revolution,  remain  in  force,  and  that  this  clause  so  far 
modifies  the  general  proposition,  that  no  laws  are  saved,  but  those 
which  have  been  actually  applied  to  cases  in  judgment  in  a  court  of 
legal  proceeding  ;  and  unless  it  can  be  shown  affirmatively  that  some 
judgment  has  been  rendered,  at  some  time  before  the  adoption  of  the 
constitution,  affirmative  of  any  particular  rule  or  principle  of  the 
common  law,  such  rule  is  not  brought  within  the  saving  power  of  this 
clause,  and  cannot  therefore  be  shown  to  exist.  We  doubt  the  sound- 
ness of  this  proposition,  and  the  correctness  of  the  conclusion  drawn 
from  it. 

We  do  not  accede  to  the  proposition,  that  the  present  existence  and 
effect  of  the  whole  body  of  law,  which  existed  before  the  constitution, 
depends  solely  upon  this  provision  of  it.  We  take  it  to  be  a  well- 
settled  principle,  acknowledged  by  all  civilized  states  governed  by 
law,  that  by  means  of  a  political  revolution,  hy  which  the  political 
organization  is  changed,  the  municipal  laws,  regulating  their  social 
relations,  duties,  and  rights,  are  not  necessarily  abrogated.  They 
remain  in  force,  except  so  far  as  they  are  repealed  or  modified  b^^  the 
new  sovereign  authority.  Indeed,  the  existence  of  this  body  of  laws, 
and  the  social  and  personal  rights  dependent  upon  them,  from  1776, 
when  the  Declaration  of  Independence  was  ijiade,  and  our  political 
revolution  took  place,  to  1780,  Avhen  this  constitution  was  adopted, 
depend  on  this  principle.  The  clause  in  the  constitution,  therefore, 
though  highly  proper  and  expedient  to  remove  doubts,  and  give 
greater  assurance  to  the  cautious  and  timid,  was  not  necessar}-  to 
preserve  all  prior  laws  in  force,  and  was  rather  declaratory  of  an 
existing  rule,  than  the  enactment  of  a  new  one.  We  think,  therefore, 
it  should  have  such  a  construction  as  best  to  carrj'  into  effect  the 
great  principle  it  was  intended  to  establish. 

But  further ;  we  think  the  argument  is  unsound  in  assuming  that  no 
rule  of  the  common  law  can  be  established  under  this  clause  of  the 
constitution,  without  showing  affirmatively,  that  in  some  judicial  pro- 
ceeding, such  rule  of  law  has  been  drawn  in  question  and  affirmed, 
previousl}'  to  the  adoption  of  the  constitution.  During  that  time  there 
were  no  published  report  of  judicial  proceedings.  The  records  of 
courts  were  very  imperfectly  kept,  and  afford  but  little  information  in 


SECT.    II.]  CO.^LMO^•^VEALTH    V.    CHAPMAN.  75 

regard  to  the  rules  of  law  discussed  and  adopted  in  them.  And  who 
has  examined  all  the  records  of  all  the  criminal  courts  of  Massachu- 
setts, and  can  declare  that  no  records  of  such  prosecutions  can  be 
found  ?  But  so  far  as  it  regards  libel,  as  a  criminal  offence,  we  think 
it  does  appear,  from  the  very  full  and  careful  examination  of  the  late 
Judge  Thacher  {Commomoealth  v.  Whitmarsh,  Thacher's  Crim. 
Cases,  441),  that  many  prosecutions  for  libel  were  instituted  in  the 
criminal  courts  before  the  Revolution,  and  none  were  ever  quashed  or 
otherwise  disposed  of,  on  the  ground  that  there  was  no  law  rendering 
libels  punishable.  In  the  case  of  the  indictments  returned  against 
Governor  Gage  and  others,  ver}'  much  against  the  will  of  the  judges, 
those  indictments  were  received  and  filed,  and  remained,  until  no7i 
prossed  bj'  the  king's  attorney -general.  This  investigation  of  the 
history'  of  the  common  law  of  Massachusetts  is  so  thorough,  complete, 
and  satisfactor}',  that  it  is  sufficient  to  refer  to  it,  as  a  clear  elucidation 
of  the  subject. 

But  we  think  there  is  another  species  of  evidence  to  prove  the 
existence  of  the  common  law,  making  libel  an  offence  punishable  by 
law,  clear,  satisfactory',  and  decisive  ;  and  that  is,  these  rules  of  law, 
with  some  modification,  caused  b}'  the  provisions  of  the  constitution, 
have  been  affirmed,  declared,  and  ratified  bj'  the  judiciary  and  the 
legislative  departments  of  the  existing  government  of  Massachusetts, 
b}-  those  whose  appropriate  province  and  constitutional  duty  it  was 
to  act  and  decide  upon  them ;  so  that  they  now  stand  upon  a  basis  of 
authorit}'  which  cannot  be  shaken,  and  must  so  stand  until  altered  or 
modified  b^-  the  legislature. 

When  our  ancestors  first  settled  this  countrj',  they  came  here  as 
English  subjects  ;  thej"  settled  on  the  land  as  English  territor}',  con- 
stituting part  of  the  realm  of  England,  and  of  course  governed  by  its 
laws ;  they  accepted  charters  from  the  English  government,  conferring 
both  political  powers  and  civil  privileges  ;  and  they  never  ceased  to 
acknowledge  themselves  English  subjects,  and  never  ceased  to  claim 
the  rights  and  privileges  of  English  subjects,  till  tlie  Revolution.  It  is 
not  therefore,  perhaps,  so  accurate  to  say  that  they  established  the 
laws  of  England  here,  as  to  say,  that  they  were  subject  to  the  laws  of 
England.  When  they  left  one  portion  of  its  territory,  they  were  alike 
subject,  on  their  transit  and  when  tliey  arrived  at  another  portion  of 
the  English  territory- ;  and  theix-lbre  always,  till  the  Declaration  of 
Independence,  they  were  governed  and  protected  by  the  laws  of  Eng- 
land, so  far  as  those  laws  were  applicable  to  their  state  and  condition. 
Under  this  catogorv  must  come  all  municipal  laws  regulating  and 
securing  the  riglits  of  real  and  personal  pro|)erty,  of  person  and  per- 
sonal liberty,  of  habitation,  of  reputation  and  character,  and  of  peace. 
The  laws  designed  for  the  protection  of  reputation  and  character,  and 
to  prevent  private  quarrels,  affrays,  and  breaches  of  peace,  by  punish- 
ing malicious  libel,  were  as  important  and  as  applicable  to  the  state 
and  condition  of  the  colonists  as  the  law  punishing  violations  of  the 


76  FIKST   NATIONAL    BANK    V.    KINNER.  [CHAP.    I. 

rights  of  property',  of  person,  or  of  habitation;  that  is,  as  laws  for 
punishing  larcen}^  assault  and  battery,  or  burglary.  Being  part  of  the 
common  law  of  England,  applicable  to  the  state  and  condition  of  the 
colonists,  they  necessarily  applied  to  all  English  subjects  and  terri- 
tories, as  well  in  America  as  in  Great  Britain,  and  so  continued  applic- 
able till  the  Declaration  of  Independence. 

This,  therefore,  would  be  evidence,  a  priori,  that  they  were  in  force, 
and  were  adopted  by  the  clause  cited  from  the  constitution,  except  so 
far  as  modified  b}'  the  excepting  clause. 

That  the  law  of  libel  existed,  at  the  first  migration  of  our  ancestors, 
and  during  the  whole  period  of  the  colonial  and  provincial  governments, 
is  proved  by  a  series  of  unquestionable  authorities.^ 

Exceptions  overruled. 


^^ 


Emerson,  J.,  in  First  National  Bank  y.  Kinner,  1  Utah,  100  (1873). 
In  American  Ins.  Co.  v.  Canter,  1  Pet.  511,  the  court,  b}'  Judge  Mar- 
shall, say,  substantially,  that  the  laws  of  Florida,  as  they  were  when 
the  Territory'  was  ceded,  so  far  as  not  inconsistent  with  the  Consti- 
tution and  Laws  of  the  United  States,  continued  in  force  until  altered 
by  the  newly  created  power  of  the  State.  (See,  also.  United  States  v. 
Powers,  11  How.  570;  Strothers  v.  Lucas,  12  Pet.  410,  436.)  This 
appears  to  be  the  settled  doctrine  in  regard  to  conquered  and  ceded 
Territory'  in  the  absence  of  special  treaty  stipulation.  It  applies  to 
territory  acquired  from  Mexico,  since  tlie  treatv  of  Guadaloui)e  made 
no  special  provision  on  the  subject.  Utah  was  embraced  in  that  ac- 
quisition. As  in  Florida  the  pre-existing  law  was  Spanish,  so  in  Utah, 
it  was  Mexican,  and  in  both  cases  the  laws  were  derived  mainly  from 
the  laws  of  Rome.  In  neither  did  the  English  common  law,  or  the 
Statute  of  Frauds,  prevail.  Congress  made  no  special  change,  and 
the  Territorial  Legislature,  upon  whom  authority  was  conferred,  have 
made  no  express  enactment  upon  the  subject. 

This  Territoiy  was  first  settled  in  1847,  and  from  that  time  up  to  the 
acquisition  and  treaty  in  1848,  the  settlers  were  comparatively  few  in 
number.  There  were  no  settled  laws,  usages,  and  customs  among 
them.  The}'  came  here  as  American  citizens,  under  the  flag,  and 
claiming  the  protection  of  the  United  States  Government. 

The  particular  class  of  persons  forming  the  great,  if  not  the  entire 
bulk  of  emigrants,  claim  to  have  furnished  troops  from  among  their 
own  numbers  to  assist  this  Government  in  its  war  against  Mexico. 

At  the  time  of  the  acquisition  and  treaty,  the}-  could  not  claim  Mexi- 
can citizenship,  and  have  never  adopted  its  laws  and  customs. 

Soon  after  the  change  of  sovereignty  by  the  treaty,  emigrants  in 

1  The  learned  Chief  Justice  proceeded  to  show  that  these  authorities  had  been 
Collowed  in  Massachusetts  since  the  adoption  of  the  constitution.  —  Ed. 


SECT.    II.]  CHAPPELL    V.   JARDINE.  77 

large  numbers  flocked  in  from  the  States  and  surrounding  Territories, 
and  for  mans'  years  there  has  been  an  organized  community. 

When  we  turn  to  the  communities  from  whence  these  emigrants  pro- 
ceeded, we  find  that  they  differed  one  from  another,  more  or  less,  in 
regard  to  their  laws  and  institutions.  No  two  are  alike.  In  the  most, 
it  is  true,  many  common-law  principles  and  doctrines  were  in  force. 
Still  the  body  of  the  common  law  in  each  was  peculiar  to  the  particular 
State,  and  it  was  rather  the  common  law  of  the  State  than  the  English 
common  law.  In  some,  the  English  statutes  had  been  received  as 
common  law ;  in  others,  not. 

These  diversities  make  it  impossible  to  assume  that  any  specific  body 
of  the  common  law  was  transplanted  to  the  Territory  "by  the  fact  ol 
immigration. 

But  one  course  was  open,  and  that  was  for  the  whole  body  of  the 
people  to  agree,  expressly  or  tacitly,  upon  a  common  measure.  It  was 
to  be  expected  that  the  emigrants  would  not  be  contented  with  the 
loose  and  alien  institutions  of  an  outlying  Mexican  department,  and 
they  have  not  been. 

They  have  tacitly  agreed  upon  maxims  and  principles  of  the  common 
law  suited  to  their  conditions  and  consistent  with  the  Constitution  and 
Laws  of  the  United  States,  and  they  only  wait  recognition  by  the  courts 
to  become  the  common  law  of  the  Territory.  When  so  recognized, 
they  are  laws  as  certainly  as  if  expressly  adopted  by  the  law-making 
power. 


CHAPPELL  V.   JARDINE. 
Supreme  Court  of  Errors  of  Connecticut.     1884. 

[Reported  51  Connecticut,  64.] 

Park,  C.  J.^  This  is  a  suit  for  the  foreclosure  of  certain  mortgaged 
premises,  constituting  an  island,  known  as  Ram  Island,  in  Long  Island 
Sound.  The  complaint  alleges  that  the  land  mortgaged,  at  the  time 
the  deed  was  given,  lay  in  the  town  of  Southhold,  Suffolk  County,  in 
the  State  of  New  York,  and  it  is  averred  tliat  the  mortgage  was  re- 
corded in  the  office  of  the  clerk  of  Suffolk  County  in  that  State.  It  is 
further  alleged  that  Ram  Island,  by  the  recent  establishment  of  the 
boundary  line  between  the  State  of  New  York  and  this  State,  has  be- 
come a  part  of  the  town  of  Stonington  in  this  State.  Tlie  complaint  is 
demurred  to,  so  that  the  averment  stands  admitted  tliat  the  island  was, 
when  the  mortgage  was  made,  a  part  of  the  State  of  New  York. 

We  have  heretofore  held  (Elphick  v.  Hoffman,  49  Conn.  331)  that 
the  boundary  agreed  upon  by  the  joint  commission  of  the  two  States 
and  established  by  the  legislative  acceptance  of  both  States,  was  to  be 
regarded  as  presumably  a  designation  and  establishment  of  the  pre- 

*  Tart  of  the  opinion  is  omitted.  —  Ei>. 


78  CHAPPELL   V.    JARDINE.  [CHAP.    I. 

existing  boundary  line  which  had  become  lost,  and  not  as  the  estuijlisli- 
ment  of  a  new  line,  leaving  the  matter  open  to  proof  in  special  cases. 
If  we  should  apply  that  rule  here,  and  consider  the  island  in  question 
as  having  been  legally  a  part  of  this  State  when  the  mortgage  was 
made,  we  should  at  once  encounter  another  question  of  a  serious  nature. 
There  can  be  no  question  that  whatever  has  been  the  de  jure  jurisdic- 
tiou  over  the  island,  it  has  been  for  man}'  years  within  the  de  facto 
jurisdiction  of  the  State  of  New  Yorlc;  and  we  shouUl  be  compelled  to 
determine  the  legal  effect  upon  this  mortgage  of  that  de  facto  jurisdic- 
tion. 

We  have  thought  it  as  well,  therefore,  to  take  the  case  as  the  parties 
have  themselves  presented  it,  the  plaintitf  by  the  averments  of  his  com- 
plaint and  the  defendants  by  tlie  admissions  of  their  demurrer,  and 
regard  the  island  in  question  as  having  been  within  the  State  of  New 
York  when  the  mortgage  was  made,  and  afterwards  brought  witliin 
..Uis  State  by  the  establishment  of  the  boundary  line.  Indeed  as  tlie 
proceeding  is  in  error  we  cannot  properly  govern  ourselves  by  anythuig 
jut  the  record  as  it  comes  before  us. 

And  in  treating  the  island  as  within  the  State  of  New  York  when  the 
mortgage  was  made  we  are  regarding  the  contract  and  the  rights  of 
the  parties  under  it,  precisely  as  they  themselves  understood  them  at 
the  time. 

The  mortgaged  premises  having  been  in  the  State  of  New  York  when 
the  mortgage  was  made,  it  is  of  course  to  be  governed  in  its  construc- 
tion and  effect  by  the  laws  of  that  State  then  in  force.  In  McCormick 
V.  Sullivant,  10  Wheat.  192,  the  court  say:  ''It  is  an  acknowledged 
principle  of  law  that  the  title  and  disposition  of  real  property  is  exclu- 
sively subject  to  the  laws  of  the  countr}'  where  it  is  situated,  which  can 
alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one  per- 
son to  another."  The  same  doctrine  is  held  in  United  States  v.  Crosby, 
7  Cranch,  115,  Kerr  v.  Moon,  9  Wheat.  565,  Darby  v.  Mayer,  10  id. 
465,  and  in  many  other  cases.  Indeed  the  doctrine  is  unquestioned 
law  everywhere. 

Now,  according  to  the  laws  of  the  State  of  New  York  then  and  still 
in  force,  a  mortgage  of  real  estate  creates  a  mere  chose  in  action,  a 
pledge,  a  security  for  the  debt.  It  conve5's  no  title  to  the  property. 
The  claim  of  the  mortgagee  is  a  mere  chattel  interest.  He  has  no  right 
to  the  possession  of  the  propert}'.  The  title  and  seisin  remain  in  the 
mortgagor,  and  he  can  maintain  trespass  and  ejectment  against  the 
mortgagee,  if  he  takes  possession  of  the  propertj'  without  the  consent 
of  the  mortgagor.     This  appears  clearly  from  the  following  cases. -^ 

It  follows,  therefore,  that  while  the  land  in  question  remained  in  the 
State  of  New  York,  it  was  incumbered  "jV  a  mortgage  of  this  character  ; 

1  The  learned  judge  here  cited  and  discussed  the  following  cases  :  Gardner  v.  Heartt, 
3  Den.  232  ;  Power  v.  Lester,  23  N.  Y.  527  ;  Trinira  v.  Marsh,  54  N.  Y.  599  ;  Jackson 
V.  Willard,  4  Johns.  42  ;  Astor  v.  Hoyt,  5  Wend.  603  ;  Kortright  v.  Cady,  21  N.  Y. 
343  ;  Merritt  v.  Bartholick,  36  N.  Y.  44.  —  Ed. 


SECT.    II.]  CHAPPELL    V.    JAKDINE.  79 

and  when  it  came  into  this  State  it  bore  with  it  the  same  burden  pre- 
ciseh".  There  was  nothing  in  tlie  change  of  jurisdiction  that  could 
affect  the  contract  of  mortgage  tliat  had  been  made  between  the  parties. 
The  title  to  the  property  continued  to  remain  in  the  mortgagor,  and  it 
remains  in  him  still.  This  is  clear.  The  laws  of  this  State  could  not 
make  a  new  contract  for  the  parties  or  add  to  one  already  made.  They 
had  to  take  the  contract  as  they  found  it. 

Now  it  is  clear  that  there  is  no  remedy  by  way  of  foreclosure  known 
to  our  law  which  is  adapted  or  appropriate  to  giving  relief  on  a  mort- 
gage of  this  character.  Our  remedy  is  adapted  to  a  mortgage  deed 
which  conveys  the  title  of  tlie  property  to  the  mortgagee,  and  when  the 
law  day  has  passed,  the  forfeiture,  stated  in  the  deed,  becomes  absolute 
at  law,  and  vests  a  full  and  complete  title  in  the  mortgagee,  with  the 
exception  of  the  equitable  right  of  redemption,  which  still  remains  in 
the  mortgagor.  The  object  of  the  decree  of  foreclosure  is,  to  extin- 
guish this  right  of  redemption  if  the  mortgage  debt  is  not  paid  by  a 
specified  time.  The  decree  acts  upon  this  right  only.  It  conveys 
nothing  to  and  decrees  nothing  in  the  mortgage  if  the  debt  is  not  paid. 
After  the  law  day  has  passed  the  right  of  redemption  becomes  a  mere 
cloud  on  the  title  the  mortgagee  then  has,  and  when  it  is  removed  his 
title  becomes  clear  and  perfect.  Phelps  v.  Sage,  2  Day,  151  ;  Roath 
V.  Smith,  5  Conn.  136;  Chamberlin  v.  Thompson,  10  id.  2i4  ;  Porter 
V.  Seeley,  13  id.  564  ;  Smith  v.  Vincent,  12  id.  1;  Doton  v.  Russell, 
17  id.  151;  Cross  v.  Robinson,  21  id.  379;  Dudley  v.  Caldwell,  19 
id.  218  ;  Colwell  v.  Warner,  36  id.  224. 

What  effect  would  such  a  decree  produce  upon  a  mortgage  like  the 
one  under  consideration,  where  the  legal  title  remains  in  the  mortgagor, 
and  nothing  but  a  pledgee's  interest  is  in  the  mortgagee,  even  afior  the 
debt  becomes  due?  It  could  only  extinguish  the  right  of  redemption, 
if  it  could  do  that.  It  could  not  give  the  mortgagee  tlie  right  of  pos- 
session of  the  property,  for  the  moi'tgagor  has  still  the  legal  title,  which 
carries  with  it  the  right  of  possession.  It  would  require  another  pro- 
ceeding in  equity,  to  say  the  least,  to  dispossess  him  of  that  title,  and 
vest  it  in  the  mortgagee.  Hence  it  is  clear  that  full  redress  cannot  be 
given  the  plaintiff  in  this  proceeding. 

But  tlie  plaintiif  has  a  lien  on  the  property  in  the  nature  of  a  pledge 
to  secure  payment  of  the  mortgage  debt.  And  although  our  remedy  of 
strict  foreclosure  may  not  be  adapted  to  give  redress  to  the  plaintiff 
through  the  medium  of  such  a  lien,  still  a  court  of  equity  can  devise  a 
mode  that  will  be  appropriate  ;  for  it  would  be  strange  if  a  lawful  lien 
upon  property  to  secure  a  debt  could  not  be  enforced  according  to  its 
tenor  by  a  court  of  chancery.  It  is  said  that  every  wrong  has  its 
remedy  ;  so  it  may  be  said  tliat  every  case  requiring  oquital)lo  relief 
has  its  corresponding  mode  of  redress.  We  have  no  doubt  that  a  court 
of  equity  has  the  power  to  subject  the  property  in  question  to  the  pay- 
ment of  this  debt,  ui)on  a  proper  coinplaiut  adapted  to  tlie  i)urpose. 
When  personal  properly  is  i)ledged  to  .secure  the  payment  of  a  debt,  it 


80  MORTIMER   V.   NEW   YORK    ELEVATED   RAILROAD    CO.      [CHAP.    I. 

ma}'  be  taken  and  sold,  that  payment  may  be  made,  after  giving  the 
pledgor  a  reasonable  opportunity  for  redemption.  80  here,  we  think 
a  similar  course  might  be  taken  with  this  property.  Such  a  course 
would  fall  in  with  the  original  intent  of  the  parties,  and  with  tiie  civil 
code  and  mode  of  procedure  of  the  State  of  New  York.  Modes  of 
redress  in  that  State  have  of  course  no  force  in  this  State,  but  such  a 
mode  of  procedure  seems  to  be  adapted  to  a  case  of  this  character. 

And  we  further  think  that  on  an  amended  complaint,  setting  forth 
all  the  essential  facts,  and  praying  that  if  there  shall  be  a  default  in  re- 
deeming the  property  during  such  time  as  the  court  shall  allow  for 
redemption,  then  the  right  of  redemption  shall  be  forever  foreclosed, 
and  the  legal  title  and  possession  of  the  property  be  decreed  in  the 
mortgagee,  such  course  might  be  taken. 

We  think  either  of  the  modes  suggested  might  be  pursued  ;  but  inas- 
much as  the  course  which  has  been  taken  leaves  the  legal  title  and  pos- 
session of  the  property  in  the  mortgagor,  we  think  the  court  erred  in 
holding  the  complaint  sufficient,  and  in  passing  the  decree  thereon. 

There  is  error  in  the  judgment  appealed  from,  and  it  is  reversed,  and 
the  case  remanded. 

In  this  opinion  the  other  judges  concurred. 


MORTIMER  V.   NEW   YORK  ELEVATED   RAILROAD  CO. 
Superior  Court  of  the  City  of  New  York.    1889. 

[Reported  6  New  York  Supplement,  898.] 

Freedman,  J.  The  claim  made  in  this  case  by  and  on  behalf  of 
the  elevated  railway  companies  is  that  the  absolute  fee  of  the  street 
known  as  the  "Bowery"  was,  prior  to  the  surrender  of  the  Dutch 
forces  to  the  Enghsh  in  1664,  in  the  Dutch  government;  that  such 
fee  thereafter  went  to  the  State  or  to  the  city  of  New  York  so  abso- 
lutely that  abutting  owners  never  had,  and  do  not  now  have,  any  ease- 
ment of  any  kind  in  said  street,  and  that,  the  elevated  railway  running 
through  the  Bowery  having  been  constructed  with  the  consent  of  both 
the  city  and  the  State,  neither  its  owners  nor  its  lessees  are  liable  for 
any  injury  inflicted  upon  abutting  property  by  reason  of  the  construc- 
tion and  operation  of  the  railway. 

The  claim  of  the  English  that  they  were  the  owners,  by  right  of 
discovery,  under  governmental  authority,  of  the  land  of  which  the 
present  city  of  New  York  forms  a  part,  and  that  this  gave  them  such 
exclusive  ownership  that  the  Dutch  government  acquired  no  title  to 
the  land  which  can  be  recognized,  has  been  fully  set  forth  in  the  opin- 
ion of  Judge  Truax.  I  concur  in  his  remarks  as  far  as  they  go,  but 
wish  to  add  the  following,  viz.  :  — 


SECT.   II.]      MORTIMER    V.    NEW   YORK    ELEVATED   RAILROAD    CO.  8l 

The  claim  of  the  English,  it  is  true,  has  occasionally  been  criticised 
on  the  ground  that  neither  of  the  Cabots  landed  in  or  near  New  York, 
or  saw  the  coast  of  New  York.  The  right  of  discovery  is  not  recog- 
nized in  the  Roman  law  unless  followed  bj-  occupation,  or  unless  the 
intention  of  the  sovereign  or  State  to  take  possession  be  declared  or 
made  known  to  the  world.  And  it  must  be  conceded  that  modern 
diplomatists  and  publicists  incline  to  the  opinion  that  mere  transient 
discovery  amounts  to  nothing  unless  followed  in  a  reasonable  time  by 
occupation  and  settlement,  more  or  less  permanent,  under  the  sanction 
of  the  State.  But  the  question  in  the  case  at  bar  is  not  to  be  decided 
according"  to  the  rules  of  the  international  law  of  the  present  time.  It 
is  a  question  purel}'  between  the  public  authorities  of  the  State  of 
New  York  and  citizens  of  the  same  State,  and  as  such  it  is  controlled 
by  the  decisions  referred  to  by  Judge  Thuax,  to  the  effect  that 
what  the  English  did  do  was  sufficient  to  give  them  title  b}'  discovery, 
and  that  such  title  is  superior  to  the  Indian  title.  These  decisions 
proceeded  upon  the  theor}'  that  the  claim  of  the  Dutch  was  contested 
by  the  English  from  the  very  start,  not  because  the}'  questioned  the 
title  given  b\'  discovery,  but  because  the}'  insisted  on  being  themselves 
the  rightful  claimants  under  that  title ;  and  that  the  claim  of  the 
English  was  finally  decided  in  their  favor  by  the  sword.  That  being 
so,  it  follows  that,  in  contemplation  of  present  law,  neither  the  Dutch 
nor  the  Roman  law  ever  prevailed  in  the  State  of  New  York  de  jure^ 
and  that  the  common  law  of  England  must  be  deemed  to  be  the  origi- 
nal source  of  all  our  law.  And  it  further  follows  that  the  foundations 
of  the  rights  of  owners  of  land  abutting  on  a  street  laid  out  while  the 
Dutch  were  in  possession,  as  against  the  city  or  the  State  of  New  York, 
rest  upon  the  English  common  law,  and  that  they  are  not  to  be  af- 
fected by  the  Dutch  or  Roman  law. 

Reported  cases  in  which  the  validity  of  Dutch  grants  was  upheld 
between  individuals  have  no  application  to  the  present  controversy. 
Now,  under  the  English  common  law,  the  presumption  is  that  the 
owners  of  lands  lying  on  a  highway  are  the  owners  of  the  fee  of  the 
highway  ;  that  the  owners  on  each  side  of  the  highway  own  the  soil 
of  the  highway  in  fee  to  the  centre  of  the  higlnvay  ;  and  that  the  rights 
of  the  public  in  and  to  the  highway  are  no  higher  or  other  than  those 
of  a  mere  easement.  Wager  v.  Railroad  Co.,  25  N.  Y.  529.  This 
presumption  applies  as  well  to  the  streets  of  a  city  as  to  a  country 
highway.  P>issell  v.  Railroad  Co.,  23  N.  Y.  61.  This  presumption 
of  law  is  founded  on  the  supposition  that  the  way  was  originally 
granted  by  the  adjoining  owners  in  equal  proportions.  Watrous  u. 
Southworth,  5  Conn.  305.  P>ut  the  presumption  may  be  rebutted  by 
proof  to  the  contrary,  and  it  is  rebutted  b}'  the  production  of  a  deed 
under  which  the  owner  derives  title  granting  the  land  to  the  side  of 
the  street  only.  Under  the  operation  of  this  rule,  and  there  being  no 
proof  of  alienation  or  escheat  recpiiring  a  dilfcrent  conclusion,  it  must 
be  assumed  in  this  case  that  the  original  grantors  from  whom  plaintiffs' 


82         MORTIMER   V.   NEW   YORK   ELEVATED    RAILROAD    CO.        [CHAP.    1. 

title  has  been  derived  owned  the  soil  of  the  Bower}-  in  front  of  the 
premises  in  suit  to  the  centre  of  the  street.  But  even  if  the  title  ot 
the  English  rested  not  in  discover}-,  but  in  conquest,  and  the  English, 
upon  the  surrender  by  the  Dutch  in  1664,  acquired  from  the  Dutch  a 
title  to  the  then  existing  streets  as  absolute  as  under  the  Roman  law 
the  title  of  the  government  to  a  military  highwa\-  was,  the  fact  would 
not  improve  the  position  of  the  defendants.  Upon  receiving  such 
title  the  English  could  do  with  it  what  they  pleased.  They  were  not 
bound  to  enforce  it  against  abutting  owners,  as  the  Dutch  government 
might  have  enforced  it.  The  presumption  is  that  they  took  the  title 
and  the  streets  to  be  held  by  them  according  to  their  own  laws,  and 
as  matter  of  fact  they  thereafter  so  dealt  with  said  streets  as  to  admit 
of  no  other  conclusion.  The  province  having  been  granted  b}-  Charles 
11.  to  his  brother,  the  Duke  of  York,  bv  the  charter  of  1664,  several 
months  before  the  surrender  to  Sir  Richard  NicoUs,  the  grant,  in  order 
to  remove  all  doubt  as  to  its  validit}',  was  afterwards  confirmed  b}'  the 
charter  of  1674,  also  granted  to  the  Duke  of  York.  The  object  of 
both  charters  was  to  enable  the  Duke  of  York  to  plant  a  colony  on  this 
continent.  The  charter  of  1664,  issued  under  the  great  seal  of  Eng- 
land, contained  a  provision  that  the  statutes,  ordinances,  etc.,  to  be 
established  b}'  the  Duke  in  the  new  countrj-,  "  should  not  be  contrary- 
to,  but  as  nearly  as  might  be  agreeable  to,  the  laws,  statutes,  and 
government  of  the  realm  of  England."  This  charter  was,  therefore, 
in  itself,  an  explicit  declaration  of  the  King's  will  that  the  laws  of 
England  should  be  established  in  the  colony,  and  that  the  laws  of  the 
Dutch  settlers  should  not  be  retained.  The  consequence  was  that, 
having  obtained  the  lands,  the  English  held  them,  not  under  the 
Dutch  or  the  civil  law,  but  under  the  common  law  of  their  own  coun- 
try. English  law  governed  English  land,  so  that,  even  if  an  absolute 
title  to  a  street  was  obtained,  the  street  was  ever  thereafter  treated  as 
an  English  street,  under  the  common  law.^ 

1  The  learned  judge  then  expressed  the  opinion  that  by  subsequent  acts  of  the  Pro- 
prietor and  of  the  State  the  city  lost  its  rights,  if  any,  to  the  legal  fee. 

In  his  concurring  opinion  Trtjax,  J.,  said  :  "  I  am  of  the  opinion  that  the  fee  of 
the  Bowery,  and  of  the  other  streets  in  the  city  of  New  York  that  are  known  as  Dutch 
streets,  never  was  in  the  Dutch  government ;  and  that  it  was,  prior  to  the  Revolution, 
bound  by  the  rules  of  the  common  law,  and  not  by  the  rules  of  the  Dutch  civil  law. 
"While  the  Dutch  were  in  actual  possession  this  execution  of  the  common  law  was 
suspended,  just  as,  during  the  late  Rebellion,  this  execution  of  the  laws  of  the  United 
States  could  not  be  enforced  in  some  of  the  southern  States.  But,  said  the  Supreme 
Court  of  the  United  States  in  Ketchum  v.  Buckley,  99  U.  S.  188,  "  the  same  general 
form  of  government,  the  same  general  law  for  the  administration  of  justice  and  the 
protection  of  private  rights  which  had  existed  in  the  States  prior  to  the  Rebellion,  re- 
mained during  its  continuance  and  afterwards." 

See  Ketchum  v.  Buckley,  99  U.  S.  188,  and  cases  cited.  —  Ed. 


SECT,  n.]  McKENNOX    V,    WINN.  83 


McKENNON   v.   WINN. 
Supreme  Court  of  Oklahoma  Territory.     1893. 
[Reported  1  Oklahoma  Reports,  327.] 

BuRFORD,  J.^  The  appellant  filed  his  complaint  in  the  court  below 
to  enforce  the  specific  performance  of  a  contract  for  the  conveyance  of 
real  estate  situated  in  Oklahoma  City,  Oklahoma  County,  Oklahoma 
Territory.  A  demurrer  was  filed  to  the  complaint,  alleging  as  grounds  : 
Jfirst.  That  the  court  has  no  jurisdiction  of  tlie  person  of  defendant, 
or  the  subject  of  the  action.  Second.  That  the  complaint  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action.  The  demurrer 
was  sustained,  to  which  the  appellant  excepted  and  brings  the  case  to 
this  court  by  appeal.  .  .  . 

The  second  ground  for  demurrer  presents  two  questions  :  First.  Can 
a  parol  contract  for  the  conveyance  of  real  estate,  or  an  interest 
therein,  made  after  the  settlement  of  this  country,  and  prior  to  the 
adoption  of  our  organic  act,  be  enforced?  Second.  Is  a  contract  for 
tlie  conveyance  of  real  estate,  entered  into  before  title  is  acquired 
from  the  United  States,  and  to  be  executed  after  title  is  acquired,  void, 
as  against  public  policy? 

The  first  proposition  seems  to  be  settled  by  the  adjudicated  cases 
and  text  writers  in  favor  of  the  appellant.  ''  Every  contract,  on  what- 
ever subject,  may  be  in  oral  words,  which  will  have  the  same  efl'ect  as 
if  written,  except  when  some  positive  rule  of  the  common  or  statutory 
law  has  provided  otherwise."  Bish.  Cont.  §  153;  Mallory  ;'.  Gillett, 
21  N.  Y.  412  ;  Wyman  v.  Goodrich,  26  Wis.  21  ;  Green  v.  Brookins, 
23  Mich.  48  ;  White  v.  Maynard,  HI  Mass.  250.  By  the  common  law, 
prior  to  the  enactment  of  the  statute  of  frauds  (29  Car.  II.  c.  3,  A. 
1).  1676),  contracts  for  the  sale  of  real  estate,  or  an  interest  therein, 
were  not  required  to  be  in  writing.  Bish.  Cont.  §  1231  ;  4  Kent 
Com.  p.  450.  The  English-speaking  people  brought  the  common  law 
to  America  with  tliem,  in  the  first  settlement  of  the  colonies;  and  it 
lias  prevailed  in  all  the  States  and  Territories,  modified  by  legislative 
acts,  local  conditions,  and  such  of  the  English  statutes  adopted  prior 
to  the  settlement  of  our  colonies  as  were  of  general  application,  and 
suited  to  our  conditions,  except  in  some  portions  where  the  French  or 
civil  law  prevailed.  At  the  time  of  the  settlement  and  discovery  of 
America  the  statute  of  frauds  had  not  been  adopted,  and  has  only 
become  the  law  of  the  United  States,  or  of  our  several  States  and 
Territories,  by  legislative  enactment. 

This  leads  us  to  tlie  inquiry,  Did  tlie  common  law  prevail  in  the 
Territory  in  April,  1889?  It  is  contc-nded  that  ])rior  to  the  si'Ltlcment 
of  Oklahoma,   and  until  the  same  was  sui>erseded  by  statutory  laws, 

^  Fart  of  the  opiiiiun  i.s  omitted.  —  Eu. 


84  McKINNON   V.   WINN.  [CHAP.   I. 

the  Code  Napoleon,  or  civil  law,  prevailed.  Whatever  ma.y  have 
been  the  laws  of  the  country  now  known  as  Oklahoma,  they  ceased 
to  operate  in  the  region  originally  comprising  the  Indian  Territory 
when  the  Territory  ceased  to  be  a  part  of  the  Territory  of  Louisi- 
ana, and  the  laws  of  the  Territory  of  Indiana  and  the  Territory  of 
Missouri,  which  may  have  once  prevailed  in  said  region,  became 
inoperative  in  and  ceased  to  have  any  force  or  effect  in  the  Indian 
Territory,  when  that  Territory  ceased  to  be  a  part  of  said  Territories. 
Railroad  Co.  y.  O'Loughlin,  49  Fed.  Rep.  440.  There  was  no  law  in 
the  Indian  Territory  regulating  the  making  of  contracts  at  the  time  of 
the  approval  of  the  Act  of  Congress  establishing  a  United  States  dis- 
trict court  in  said  Territory  by  the  act  of  March  1,  1889.  25  Stat.  783. 
Congress,  with  the  assent  of  the  Indians,  created  the  court  for  the 
whole  of  the  Indian  Territory,  which  included  Oklahoma,  and  con- 
ferred on  it  jurisdiction  in  all  civil  cases  between  citizens  of  the  United 
States  who  are  residents  of  the  Territor}',  or  between  citizens  of  the 
United  States  or  of  any  State  or  Territory,  and  any  citizen  of,  or  person 
residing  or  found  in,  the  Indian  Territory.  It  gave  the  court  author- 
ity, and  imposed  upon  it  the  duty,  to  apply  the  established  rules  and 
principles  of  the  common  law  to  the  adjudication  of  those  cases  of 
which  it  was  given  jurisdiction.  Pj'eatt  v.  Powell,  51  Fed.  Rep.  551. 
But  if  it  be  held  that  the  establishment  of  a  United  States  court  in  the 
Indian  Territory  did  not  put  the  common  law  in  force  in  said  Territor}-, 
except  in  so  far  as  was  necessary  to  execute  the  powers  of  said  court, 
and  for  the  adjudication  of  such  cases  as  actually  went  into  that  forum, 
then  there  was  no  law  in  Oklahoma,  at  the  date  of  its  settlement, 
regulating  the  making  of  contracts.  If  this  should  be  conceded,  then 
it  necessarily  follows,  on  principle,  that  when  people  from  all  parts  of 
the  United  States,  on  the  22d  day  of  April,  1889,  settled  the  country 
known  as  Oklahoma,  built  cities,  towns,  and  villages,  and  began  to 
carry  on  trade  and  commerce  in  all  its  various  branches,  they  brought 
into  Oklahoma,  with  them,  the  established  principles  and  rules  of  the 
common  law,  as  recognized  and  promulgated  by  the  American  courts, 
and  as  it  existed  when  imported  into  this  country  by  our  earl}^  settlers, 
and  unmodified  by  American  or  English  statutes.  So  that,  in  any 
event,  the  common  law  prevailed  in  Oklahoma  at  the  time  the  con- 
tract between  the  appellant  and  appellee  was  entered  into ;  and  as,  at 
common  law,  contracts  for  the  sale  and  convej'ance  of  real  estate  were 
not  required  to  be  in  writing,  the  contract  mentioned  in  the  complaint 
may  be  enforced,  unless  void  for  other  reasons.^ 

1  The  contract  was  held  not  to  be  void  on  the  f,M-ound  alleged:  the  court  followed 
on  this  point  Lamb  v.  Davenport,  18  Wall.  307.  —  Ed. 


^^^^' 


^^^!»^-^-5< 


SECT.    III.]        SELIM    FARAG   V.    DAME   ROSIXA   MAKDKOUS    ET   AL.        8b 

SECTION   III. 

CONCURRENT   LEGISLATIVE   JURISDICTION. 


MATTHEWS   v.   BURDETT. 

Queen's  Bench.     1703. 

[Reported  2  Salkeld,  412.] 

In  the  primitive  church,  the  laity  were  present  at  all  synods.  When 
the  empire  became  Christian,  no  canon  was  made  without  the  Emperor's 
consent;  the  Emperor's  consent  included  that  of  the  people,  he  having 
in  himself  the  whole  legislative  power,  which  our  kings  have  not. 
Therefore,  if  the  King  and  clerg3-  make  a  canon  it  binds  the  clerg}-  in 
re  ecclesiastica,  but  it  does  not  bind  laj'men :  they  are  not  represented 
in  Convocation ;  their  consent  is  neither  asked  nor  given.^ 


SELIM  FARAG  v.   DAME  ROSINA  MARDROUS   ET   AL. 

Court  of   Appeal  of   Alexandria  (Egyptian   Mixed   Court).     1894. 
19  Juris,  des  Trib.  de  la  Reforme,  231. 

The  Armenian  Catholic  Patriarch  of  Constantinople  on  August  23, 
1886,  and  on  November  18,  1887  pronounced  a  judicial  .separation 
between  Selim  Farag  and  his  wife,  and  condemned  him  to  pay  her 
33,000  francs  damages  and  300  francs  a  month  alimony.  One  Back, 
a  creditor  of  Mrs.  Farag,  made  a  judicial  seizure  of  the  sura  thus  due 
from  Selim  Farag.  On  January  20,  1891,  after  due  notice,  Selim 
Farag  appealed  from  the  decision  of  the  Patriarcli  to  the  Holy  See  ; 
and  the  Congregation  de  propago.nda  Jide^  to  which  the  matter  was 
referred,  by  a  decision  of  June  27,  1892  (approved  by  the  Pope  the 
same  day),  reversed  both  sentences  of  the  Patriarch.'' 

The  Court.  It  will  not  be  seriously  questioned  that  if,  as  a  result 
of  the  decision  of  tlic  Holy  Court  of  Rome,  the  sentences  of  the  Patri- 
arch have  been  made  void,  all  the  rights  which  Mrs.  Farag  or  those 
claiming  under  her  asserted  as  a  result  of  the  sentences  also  became 
void:  since  the  original  title  on  which  they  were  based  has  become  null 
and  witliout  effect.  The  fundamental  questions  arc  therefore  wlietlier 
the  Holv  See  exe(!eded  tlie  limits  of  its  jurisdiction,  and  whether  its 
decisions  have  binding  force  in  Turkey. 

1  .See  21  E.  4.  44.  i-l.  6.  —  Kd. 

2  This  short  statetiient  of  facts  liiis  been  slightly  altered  in  form  from  tlie  statement 
of  the  court.     Part  of  the  opinion,  unon  a  jtoiiit  of  procedure,  has  been  omitted.  —  Ed 


86        SELIM   FARAG   V.   DAME    ROSINA   MARDROUS   ET   AJ^.  [CHAP.    I. 

On  the  first  point,  the  Pope  is  the  head  of  the  Catholic  Church.  His 
jurisdiction  extends  directly  over  all  bishops  for  the  maintenance  of  the 
unity  of  the  faith  and  the  discipline ;  he  is,  as  the  Council  of  the  Vati- 
can proclaims,  the  Supreme  judge  of  the  faithful.  The}'  may  appeal  to 
him  in  all  cases  which  are  within  the  ecclesiastical  jurisdiction  ;  his 
sovereign  power  extends  over  the  churches  of  the  Orient  as  well  as 
over  all  other  churches  in  the  whole  world.  By  a  recent  bull  of  July 
20,  1883,  addressed  to  the  Patriarchs,  Archbishops,  and  Bishops  of  the 
Oriental  rites,  the  Congregation  de  propogcuida  fide  has  reminded 
them  of  this  fundamental  rule  of  jurisdiction,  especially  with  i-egard  to 
matrimonial  causes:  "To  harmonize  the  rigorous  observance  of  the 
Canon  Law  in  this  ver}'  important  matter  with  the  special  conditions 
of  the  ^Ecclesiastical  Courts  of  the  Orient,  appeals  ought  to  be  taken  in 
the  following  order :  if  the  first  judgment  has  been  given  in  the  Dioce- 
san Court,  appeal  shall  be  taken  to  the  Patriarchal  Court;  and  if  judg 
ment  is  given  in  the  Patriarchal  Court,  appeal  shall  be  taken  to  the 
Holy  See."  (Chap.  IV.,  §  24).  As  to  the  Armenian  Catholic  Patriarch 
of  Constantinople,  in  particular,  before  he  was  proclaimed  in  the  Con- 
sistory of  August  4,  1881,  Patriarch  of  Cilicia  under  the  name  of  Peter 
IV.,  Mgr.  Stephen  Azarian  had  addressed  to  His  Holiness  Leo  XHI. 
the  profession  of  faith  and  obedience  to  the  H0I3'  See,  which  he  had 
pronounced  before  the  Synod  in  the  form  prescribed  b\'  Urban  VIIL, 
and  submitted  himself  to  the  authorit}-  of  the  Roman  Church  in  all 
things  touching  the  faith,  the  discipline,  and  the  administration  of  his 
l)atriarchate.  There  is  no  doubt,  therefore,  that  in  granting  the  appeal 
of  Selim  Farag  against  the  decisions  of  the  Patriarch,  and  in  setting 
them  aside,  the  Holy  See  has  acted  within  the  bounds  of  its  jurisdiction 
and  its  powers. 

On  the  second  point,  far  from  disowning  the  authority  and  the  right 
of  jurisdiction  of  the  heads  of  religious  communities  established  in  the 
Orient,  the  Sublime  Porte  has  for  a  long  time  granted  to  these  com- 
munities the  most  absolute  right  of  conforming  to  the  rules  and  rites  of 
their  religion.  In  such  a  spirit  were  promulgated  tlie  Hatti  Humayoum 
on  February  18,  1856,  the  organic  rule  of  the  Supreme  Court  of  Con- 
stantinople on  8  Zilhedje,  1284,  and  the  law  of  the  Vilayets  in  1867. 
The  idea  and  intention  of  the  Sublime  Porte  are  made  still  clearer  by 
its  spontaneous  declaration  in  the  Treat}'  of  Berlin  on  July  13,  1878  ; 
in  which  it  is  said  that  "  the  Sublime  Porte  having  expressed  the  wish 
to  maintain  the  principle  of  religious  liberty  and  give  it  the  widest  ex- 
tension," it  has  been  stipulated  that  "  the  liberty  and  the  open  practice 
of  all  cults  are  assured  to  every  one,  and  no  hiudi-ance  shall  be  placed 
\\\  the  wa}'  either  of  the  hierarcliical  organization  of  the  dilTerent  com- 
munions or  of  their  relations  to  their  spiritual  heads." 

The  Berat  of  the  Sultan,  dated  21  Gamad  Aklier,  1303,  accrediting 
the  Patriarch  Azarian  after  the  confirmation  of  his  election  by  the  II0I3' 
See,  inspired  by  the  same  principles,  expressly  imposes  upon  the  Patri- 
arch respect  and  observance  of  the  laws  of  his  church,  orders  that  the 


SECT.    III.]       PAPAYAXNI    V.    RUSSIAN    STEAM    NAVIGATION    CO.  87 

Christians  of  his  communion  shall  be  judged  in  accordance  with  the 
rules  of  their  rite  and  the  laws  of  their  religion,  and  makes  the  ob- 
servance and  respect  of  these  laws  b}'  the  Patriarch  the  condition  of 
his  continuance  during  his  life.  The  constant  practice  of  the  Catholic 
Patriarchates  of  the  Orient,  Syriac,  Chaldee,  Copt,  Maronite,  Armenian, 
and  Latin,  has  certainl}-  been  to  render  legal  decisions  in  the  name  of 
the  Pope,  and  to  take  appeals  to  him,  without  any  opposition  on  the 
part  of  the  local  authorities  or  of  the  Sublime  Porte.  It  is  only  neces- 
sary to  read  the  circulars  of  February  3  and  April  1,  1891,  to  be  con- 
vinced tliat  the  Sublime  Porte,  in  decreeing  that  in  future  the  decisions 
of  the  Patriarchates  should  be  executed  like  the  other  judgments  of  the 
countf}',  without  an}'  foreign  intervention,  had  no  other  aim  than  to  put 
such  decisions  beyond  the  reach  of  objections  brought  by  tlie  defend- 
ants before  the  local  courts  charged  with  the  execution  of  judgments, 
and  to  give  the  Patriarch  alone  jurisdiction  to  pass  upon  the  objections. 
One  might  therefore  rely  upon  these  circulars  to  establish  the  doctrine 
that  the  Patriarch's  decisions  are  in  future  sovereign,  and  beyond  all 
appeal  except  to  the  superior  jurisdiction  of  the  Holy  See. 

The  decision  of  the  Holy  See,  which  has  set  aside  the  two  sentences 
of  the  Armenian  Catholic  Patriarch  of  Constantinople,  has  in  Turkey 
therefore,  the  authorit}'  of  a  sovereign  judgment,  and  had  the  immedi- 
ate effect  of  quite  avoiding  the  two  sentences.  Back  and  the  heirs  of 
Mardrous  cannot  in  addition  invoke  the  authority  of  the  judgment  of 
this  court,  January  29,  1S91,  and  the  Court  of  Cairo,  January  28,  1892, 
which  declared  regular  and  valid  the  suits  against  Farag  by  virtue,  and 
in  execution  of  the  Patriarchal  sentences;  for  these  judgments  were 
given  before  the  Papal  decision,  which  in  setting  aside  the  Patriarchal 
sentences  has  at  the  same  time  as  necessary  consequence  avoided  all 
tlie  effects  of  the  supposed  res  judicata .  It  is  in  fact  a  principle  of  the 
Courts  of  the  Reform  tiiat  the  setting  aside  or  reversal  of  a  judgment 
in  any  legal  wa}'  caused  the  avoidance  of  the  execution  and  of  all  de- 
cisions based  on  the  judgment ;  cessante  causa,  cessat  effectus. 


PAPAYANNI  V.   RUSSIAN   STEAM   NAVIGATION   CO. 

Judicial  Committee  of  the  Privy  Council.     1863. 

[Reported  2  Moore's  Privij  Cdnnril  Cases,  New  Series,  161.] 

Tms  was  an  appeal  from  two  judgments  in  an  action  and  cross- 
action,  being  a  claim  and  counter-claim,  respecting  damage  by  collision 
off  the  Island  of  Marmora,  whereby  the  steamer  "Colchide"  was 
lost,  pronounced  by  the  Judge  of  the  Supreme  Consular  Court  at 
Constantinoijle.  The  appellants  were  British  subjects  domiciled  in 
ICngland,  and  owners  of  the  "Laconia."  The  respondents  were  Rus- 
sian subjects,  "Tlic  Russian  Steam  Navigation  and  Trading  Companj-," 
a  public  company,  incorporated  by  an  Imperial  ukase  of  His  Majesty 


88  PAPAYANNI    V.    RUSSIAN    STEAM   NAVIGATION   CO.       [cHAP.    1. 

the  P^raperor  of  Russia,  and  were  the  owners  of  the  steamship  "  Col- 
chide."  .  .  .  The  appellants  entered  a  protest  against  the  jurisdiction 
of  the  Supreme  Consular  Court  to  entertain  the  cause  of  collision,  it 
being  a  proceeding  in  rem} 

Their  Lordships'  judgment  was  pronounced  In* 

Dr.  Lushington.  In  considering  what  power  and  what  jurisdiction 
was  conceded  to  Great  Britain  within  certain  portions  of  tlie  Turkish 
dominions,  it  must  always  be  borne  in  mind  that  in  almost  all  trans- 
actions, whether  political  or  mercantile,  a  wide  ditference  subsists  in 
the  dealings  between  an  Oriental  and  a  Christian  State  and  the  inter- 
course between  two  Christian  nations. 

This  is  an  undoubted  fact.  Many  of  the  reasons  are  obvious,  but 
this  is  not  the  occasion  for  discussing  them.  It  is  sufficient  for  us  to 
know  and  acknowledge  that  such  is  the  fact. 

It  is  true  beyond  all  doubt  that,  as  a  matter  of  right,  no  State  can 
claim  jurisdiction  of  any  kind  within  the  territorial  limits  of  another 
independent  State.  It  is  also  true  that  between  two  Christian  States 
all  claims  for  jurisdiction  of  any  kind,  or  exemption  from  jurisdiction, 
must  be  founded  on  treaty,  or  engagements  of  similar  validity.  Such, 
indeed,  were  factory  establishments  for  the  benefit  of  trade.  But 
though,  according  to  the  laws  and  usages  of  European  nations,  a 
cession  of  jurisdiction  to  the  subjects  of  one  State  within  the  territory 
of  another,  would  require,  generallv  at  least,  the  sanction  of  a  treaty, 
it  may  by  no  means  follow  that  the  same  strict  forms,  the  same  pre- 
cision of  treaty  obligation,  would  be  required  or  found  in  intercourse 
with  the  Ottoman  Porte. 

It  is  true,  as  we  have  said,  that  if  you  inquire  as  to  the  existence 
of  any  particular  privileges  conceded  to  one  State  in  the  dominions  of 
another,  you  would,  amongst  European  nations,  look  to  the  subsisting 
treaties  ;  but  this  mode  of  incurring  obligations,  or  of  investigating 
what  has  been  conceded,  is  matter  of  custom  and  not  of  natural 
justice. 

Anv  mode  of  proof  In-  which  it  is  shown  that  a  privilege  is  conceded 
is,  according  to  the  principles  of  natural  justice,  sufficient  for  the  pur- 
pose. The  formality  of  a  treaty  is  the  best  proof  of  the  consent  and 
acquiescence  of  parties,  but  it  is  not  the  only  proof,  nor  does  it  exclude 
other  proof;  and  more  especially  in  transactions  with  Oriental  States. 

Consent  may  be  expressed  in  various  wa^'s :  b}-  constant  usage 
permitted  and  acquiesced  in  b}'  the  authorities  of  the  State,  active 
assent,  or  silent  acquiescence,  where  there  must  be  full  knowledge. 

We,  having  considered  the  materials  before  us,  entertain  no  doubt 
that,  so  far  as  relates  to  the  Ottoman  Government,  no  objection  is 
tenable  against  the  exercise  of  jurisdiction  between  British  and  Rus- 
sian subjects.  Indeed,  the  objection,  if  an}'  such  could  properly  be 
urged,   should  come   from   the   Ottoman    Government   rather   than  a 

1  The  remainder  of  the  statement  of  facts,  the  arguments  of  counsel,  and  part  of 
the  opinion  are  omitted. —  Ed. 


SECT.    III.]  IN   RE    ROSS.  89 

British  suitor,  who,  in  this  case,  is  bound  hy  the  law  established  by 
his  own  country.  The  case  may,  in  some  degree,  be  assimilated  to 
the  violation  of  neutral  territory  by  a  belligerent;  the  neutral  State 
alone  can  complain. 

We  think,  looking  at  the  whole  of  this  case,  that  so  far  as  the 
Ottoman  Government  is  concerned,  it  is  sufficiently  shown  that  they 
have  acquiesced  in  allowing  to  the  British  Government  a  jurisdiction, 
whatsoever  be  its  peculiar  kind,  between  British  subjects  and  the 
subjects  of  other  Christian  States.  It  appears  to  us  that  the  course 
was  this  :  that  at  first,  from  tlie  total  difference  of  religious  habits 
and  feelings,  it  was  necessary  to  withdraw  as  far  as  practicable 
British  subjects  from  the  native  courts ;  then  in  the  progress  of 
time  commerce  increasing,  and  various  nations  having  the  same  inter- 
est in  abstaining  from  resort  to  the  trihiuials  of  Mussulmans,  etc., 
recourse  was  had  to  Consular  Courts  ;  and  b}'  degrees  the  .system  be- 
came general.  Of  all  this  the  Government  of  the  Ottoman  Porte  must 
have  been  cognizant,  and  their  long  acquiescence  proves  consent. 
The  principles  are  fully  explained  in  the  celebrated  judgment  of  Lord 
Stowell  in  the  case  of  "The  Indian  Chief"  (3  C.  Rob.  28),  to  which 
we  have  very  recently  referred  (Advocate-General  of  Bengal  v.  Ranee 
Surnomoye  Dossee,  2  Moo.  P.  C.  22,  60). 

Though  the  Ottoman  Porte  could  give  and  has  given  to  the  Christian 
Powers  of  Europe  authority  to  administer  justice  to  thoir  own  subjects, 
according  to  their  own  laws,  it  neither  has  professed  to  give  nor  could 
give  to  one  such  Power  any  jurisdiction  over  the  subjects  of  another 
Power.  But  it  has  left  those  Powers  at  liberty  to  deal  with  each  other 
as  they  may  think  fit,  and  if  the  subjects  of  one  country  desire  to 
resort  to  the  tribunals  of  another,  there  can  be  no  objection  to  their 
doing  so  with  the  consent  of  their  own  Sovereign  and  that  of  the  Sove- 
reign to  whose  tribunals  they  resort.  There  is  no  compulsory  power 
in  an  English  Court  in  Turkey  over  any  but  English  subjects  ;  but  a 
Russian  or  any  other  foreigner  may,  if  he  pleases,  voluntarily  resort 
to  it  witli  the  consent  of  his  Sovereign,  and  thereby  submit  himself  to 
its  jurisdiction. 


In  re  ROSS. 

Supreme  Court  op  The  United  States.     1890. 

[Reported  140  United  States  Eeparts,  453.] 

The  petitioner  below,  the  appellant  here,  was  imprisoned  in  the 

penitentiary  at  Albany  in  the  State  of  New  Yoik.     lie  was  convicted 

on  the  20th  of  May,  1880,  in  the  American  consular  tribunal  in  Japan, 

of  the  crime  of  murder,  committed  on  board  of  an  American  ship  in  the 

harbor  of  Yokohama  in  that  empire,  and  sentenced  to  death. 

On  the  Gth  of  August  following,  his  sentence  was  commuted   by  tlic 
President  to  imprisonment  for  life  in  the   [K-nitentiary  at  All)aiiy.  and 


90  IN    RE   ROSS.  [chap.   I 

to  that  place  he  was  taken,  and  there  he  has  ever  since  been  confined. 
Nearh'  ten  years  afterwards,  on  the  19th  of  March,  1890,  he  applied 
to  the  Circuit  Court  of  the  United  States  for  the  Northern  District  of 
New  York  for  a  writ  of  habeas  corpus  for  his  discharge,  alleging  that 
his  conviction,  sentence,  and  imprisonment  were  unlawful,  and  stating 
the  causes  thereof  and  the  attendant  circumstances.  The  writ  was 
issued,  directed  to  the  superintendent  of  the  penitentiary,  who  made 
return  that  he  held  the  petitioner  under  the  warrant  of  the  Presi- 
dent. .  .  . 

Field,  J.^  The  practice  of  European  governments  to  send  officers 
to  reside  in  foreign  countries,  authorized  to  exercise  a  limited  jurisdic- 
tion over  vessels  and  seamen  of  their  country,  to  watch  the  interests  of 
their  countrymen  and  to  assist  in  adjusting  their  disputes  and  protect- 
ing their  commerce,  goes  back  to  a  very  early  period,  even  preceding 
what  are  termed  the  Middle  Ages.  During  those  ages  these  commer- 
cial magistrates,  generall}'  designated  as  consuls,  possessed  to  some 
extent  a  representative  character,  sometimes  discharging  judicial  and 
diplomatic  functions.  In  other  than  Christian  countries  they  were,  by 
treaty  stipulations,  usually  clothed  with  authority  to  hear  complaints 
against  their  countrymen  and  to  sit  in  judgment  upon  them  when 
charged  with  public  offences.  After  the  rise  of  Islamism,  and  the 
spread  of  its  followers  over  eastern  Asia  and  other  countries  bordering 
on  the  Mediterranean,  the  exercise  of  this  judicial  authority  became  a 
matter  of  great  concern.  The  intense  hostility  of  the  people  of  Moslem 
faith  to  all  other  sects,  and  particularly  to  Christians,  affected  all  their 
intercourse,  and  all  proceedings  had  in  tlieir  tribunals.  Even  the  rules 
of  evidence  adopted  by  them  placed  those  of  different  faith  on  unequal 
grounds  in  any  controversy  witli  them.  For  this  cause,  and  by  reason 
of  the  barbarous  and  cruel  punishments  inflicted  in  those  counti-ies,  and 
the  frequent  use  of  torture  to  enforce  confession  from  parties  accused, 
it  was  a  matter  of  deep  interest  to  Christian  governments  to  withdraw 
the  trial  of  their  subjects,  when  charged  with  the  commission  of  a 
public  offence,  from  the  arbitrary  and  despotic  action  of  the  local 
officials.  Treaties  conferring  such  jurisdiction  upon  these  consuls  were 
essential  to  the  peaceful  residence  of  Christians  within  those  countries 
and  the  successful  prosecution  of  commerce  with  their  people. 

The  treat3'-making  power  vested  in  our  government  extends  to  all 
proper  subjects  of  negotiation  with  foreign  governments.  It  can, 
equall}'  with  any  of  the  former  or  present  governments  of  Europe,  make 
treaties  providing  for  the  exercise  of  judicial  authority  in  other  coun- 
tries by  its  officers  appointed  to  reside  therein. 

We  do  not  understand  that  any  question  is  made  hy  counsel  as  to  its 
power  in  this  respect.  His  objection  is  to  the  legislation  by  which  such 
treaties  are  carried  out,  contending  that,  so  far  as  crimes  of  a  felonious 
character  are  concerned,  the  same  protection  and  guarantee  against  an 

^  Part  of  the  opinion  only  is  given.  — Ed. 


SECT.    III.l  IX   KE   ROSS.  91 

undue  accusation  or  an  unfair  trial,  secured  by  the  Constitution  to  citi- 
zens of  the  United  States  at  home,  sliould  be  enjo3"ed  by  them  abroad. 
In  none  of  the  laws  which  have  been  passed  b}'  Congress  to  give  effect 
to  treaties  of  the  kind  has  there  been  any  attempt  to  require  indictment 
by  a  grand  jury  before  one  can  be  called  upon  to  answer  for  a  public 
oflFence  of  that  grade  committed  in  those  countries,  or  to  secure  a  jury 
on  the  trial  of  the  offence.  Yet  the  laws  on  that  subject  have  been 
passed  without  objection  to  their  constitutionality.  Indeed,  objection 
on  that  ground  was  never  raised  in  any  quarter,  so  far  as  we  are  in- 
formed, until  a  recent  period. 

It  is  now,  however,  earnestly  pressed  b}'  counsel  for  the  petitioner, 
but  we  do  not  think  it  tenable.  B\-  the  Constitution  a  government  is 
ordained  and  established  "  for  the  United  States  of  America,"  and  not 
for  countries  outside  of  their  limits.  The  guarantees  it  affords  against 
accusation  of  capital  or  infamous  crimes,  except  by  indictment  or  pre- 
sentment b}'  a  grand  jur}-,  and  for  an  impartial  trial  b}'  a  jury  when 
thus  accused,  apply  only  to  citizens  and  others  within  the  United 
States,  or  who  are  brought  there  for  trial  for  alleged  offences  committed 
elsewhere,  and  not  to  residents  or  temporary'  sojourners  abroad.  Cook 
r.  United  States,  138  U.  S.  157,  181.  The  Constitution  can  have  no 
operation  in  another  country.  When,  therefore,  the  representatives  or 
officers  of  our  government  are  permitted  to  exercise  authority  of  any 
kind  in  another  countr}',  it  must  be  on  such  conditions  as  the  two 
countries  may  agree,  the  laws  of  neither  one  being  obligatory-  upon  the 
other.  The  deck  of  a  private  American  vessel,  it  is  true,  is  considered 
for  manj'  purposes  constructively  as  territory  of  the  United  States,  yet 
persons  on  board  of  such  vessels,  whether  officers,  sailors,  or  passen- 
gers, cannot  invoke  the  protection  of  the  provisions  referred  to  until 
brought  within  the  actual  territorial  boundaries  of  the  United  States. 
And,  besides,  their  enforcement  abroad  in  numerous  places,  where  it 
would  be  highlj'  important  to  have  consuls  invested  with  judicial  au- 
thority, would  be  impracticable  from  the  impossibility  of  obtaining 
a  competent  grand  or  petit  jur}'.  The  requirement  of  such  a  bodj-  to 
accuse  and  to  try  an  offender  would,  in  a  majority  of  cases,  cause  an 
abandonment  of  all  prosecution.  The  framers  of  the  Constitution,  who 
were  fully  aware  of  the  necessity  of  having  judicial  authority  exercised 
b}'  our  consuls  in  non-Christian  countries,  if  commercial  intercourse 
was  to  be  had  with  their  people,  never  could  have  supposed  that  all  the 
guarantees  in  the  administration  of  the  law  upon  criminals  at  home 
were  to  be  transferred  to  such  consular  establishments,  and  applied 
before  an  American  who  had  committed  a  felony  tliere  could  he  accused 
and  tried.  They  must  liave  known  that  such  a  rcfiuircment  would  de- 
feat the  main  purpose  of  investing  the  consul  with  judicial  authority'. 
AVhile,  therefore,  in  one  aspect  the  American  accused  of  crime  com- 
mitted in  those  countries  is  deprived  of  the  guarantees  of  the  Constitu- 
tion against  unjust  accns.'ition  arid  a  partial  trial,  yet  in  another-  aspect 
he  is  the  gainer,  in  being  withdrawn  from  the  procedure  of  their  tri 


92  FICHERA    V.    DE    STRKNS.  [CHAP.    I. 

bunals,  often  arbitrary  ana  oppressive,  ana  sometimes  accompanied 
with  extreme  cruelty  and  torture.  Letter  of  Mr.  Cusliing  to  Mr. 
Calhoun  of  September  29,  1844,  accompanying  President's  message 
communicating  abstract  of  treaty  with  China,  Senate  Doc.  58,  28th 
Cong.  2d  Sess.  ;  Letter  on  Judicial  Exterritorial  Rights  by  Secretary 
Frelinghu3'^sen  to  Chairman  of  Senate  Committee  on  Foreign  Relations 
of  April  29,  1882,  Senate  Doc.  89,  47th  Cong.  1st  Sess. ;  Phillimore 
on  Int.  Law,  vol.  2,  part  7  ;  Halleck  on  Int.  Law,  c.  41.  .  .  . 


FICHERA   V.   DE   STRENS. 

Belgian  Consular  Court,  Cairo.     1887. 

[Reported  16  Clunct,  141.] 

The  Court.  The  Constitution  of  February  7,  1831,  cannot  guaran- 
tee to  Belgian  citizens  the  enjoyment  of  their  constitutional  rights 
outside  the  limits  of  the  national  territory.  It  cannot  have  the  effect 
of  granting  liberty  of  worship,  of  the  press,  of  speech,  and  of  assem- 
blage in  countries  which  cannot  tolerate  such  libert}".  Therefore,  the 
special  measures  of  protection  which  are  the  corollary  of  it,  like  trial 
by  jur\-  in  crimes  concerning  the  press,  cannot  be  invoked  in  the  case 
of  acts  committed  in  a  foreign  countiy. 

One  cannot  rel}-  upon  the  fiction  of  exterritoriality  to  argue  that  the 
crime  imputed  to  the  accused  should  be  considered  as  having  been 
committed  in  Belgium  ;  for  this  fiction  cannot  be  pressed  beyond  its 
object,  which  is,  in  penal  matters,  as  much  to  secure  the  repression 
of  crimes  committed  b}^  Belgians  in  a  countr}-  outside  Christendom  as 
to  protect  them  from  vexatious  prosecutions  b}'  foreign  governments. 
The  theory  of  incompetence  set  up  by  the  accused  would,  on  the  con- 
trary, render  the  repression  of  crimes  of  the  press  illusory  and  impos- 
sible ;  for  to  deal  justl}'  with  such  an  affair  it  is  necessary  to  take 
account  of  the  personality  of  the  parties  to  the  cause  and  of  the 
polemical  habits  of  the  local  press,  things  which  cannot  be  wisely 
appreciated  by  judges  who  are  entire  strangers  to  the  place  where  the 
alleged  Ubels  were  published.   .  .  .^ 

On  principle,  citizens  of  a  country  residing  abroad,  whatever  may 
be  their  political  and  constitutional  rights  elsewhere,  are  subject  to 
the  criminal  laws  of  the  foreign  country  where  they  live.  There  is, 
it  is  true,  an  exception  when  countries  outside  Christendom  are 
concerned,  but  this  exception  results,  not  from  the  Constitution,  but 
from  the  diplomatic  conventions  and  the  special  laws  which  exclusivel}' 
govern  it.  So  far  as  concerns  Belgian  citizens,  this  special  law  is  the 
consular  law  of  December  31,  1851  ;  by  the  terms  of  Art.  27  of  this 
law,  the  Consular  Court  has  cognizance  of  all  crimes  committed  within 

*  The  court  here  held  that  no  Belgian  court  had  iuiisJietion.  —  Ed. 


SECT.    III.]  KOUET   V.    SCHIFF,  93 

the  limits  of  the  consulate.  It  makes  no  distinction  between  ordinary 
crimes  and  crimes  of  the  press  ;  no  mention  at  all  is  made  of  a  special 
procedure  for  crimes  of  this  sort. 

The  plea  to  the  jurisdiction  is  overruled. 


ROUET  V.   SCHIFF. 

Court  of   Cassation,   France.     1891. 

[Reported  Journal  du  Palais,  1891,  721.] 

M.  RouET,  a  French  banker  at  Constantinople,  engaged  in  a  series 
of  operations  on  the  Bourse  with  MM.  Schiff  &  Co.,  English  subjects. 
The  operations  resulted  in  1885  in  a  balance  of  £1400,  for  which 
Rouet,  on  Ma}-  11,  1885,  signed  two  promissory  notes  to  the  order 
of  Schiff  &  Co.  These  bills  having  been  protested  at  maturity,  MM. 
Schiff  brought  suit  against  their  debtor,  who  set  up  in  defence  that 
the  transaction  was  void  for  gaming.  To  meet  this  defence,  MM. 
Schiff  invoked  the  law  of  March  25,  1885.  But  Rouet  replied  that 
this  law  had  no  retroactive  effect,  and  that  on  the  day  of  signing  the 
notes  it  had  not  yet  gone  into  effect  in  Constantinople. 

By  judgment  of  June  25,  1886,  the  Consular  Court  of  Constanti- 
nople, in  which  the  suit  was  brought,  decided  in  favor  of  Schiff  &  Co. 
as  follows :  — 

"As  to  the  obligatory  force  at  Constantinople  of  the  law  of  March 
28-April  8,  1885;  our  legislation  has  not  made  special  provisions  for 
the  promulgation  of  law  in  the  Levant,  and  the  presumption  of  Article 
1  of  the  Civil  Code^  ceases  at  the  frontiers  of  the  fatherland,  and 
cannot  be  extended  to  Frenclimen  residing  abroad.  The  consular 
tribunals  ought,  by  analogy  with  our  laws  in  force,  while  protecting 
private  interests,  to  conform  to  established  rules  in  asserting  the  au- 
thority of  laws.  There  are  two  systems  possible,  that  of  Article  73  of 
the  Code  of  Procedure,  which  grants  a  delay  of  two  months  as  legally 
necessary  for  knowledge  of  a  legal  process  to  be  presumed  to  have 
reached  the  interested  party,  and  that  of  the  Decree  of  5-11  November, 
1870.  Article  73,  Co.  Proc,  had  quite  another  object  than  that  of  a 
legislator  in  determining  when  a  new  law  shall  become  obligatory ;  it 
granted  a  long  delay  in  order  to  permit  a  Frenchman  in  a  foreign  land 
to  prepare  a  method  of  defence  and  to  provide  at  leisure  for  the  for- 
malities of  a  lawsuit ;  hut  the  same  considerations  do  not  exist  in  a 
matter  of  promulgating  law,  where  the  ol)ject  is  to  give  notice  of  the 
legislative  will.  The  consular  tribunals  ought,  therefore,  to  follow  the 
rule  laid  down  in  the  decree  of  5-11  November,  1870. 

"  By  virtue  of  this  decree,  the  promulgation  of  laws  results  from 

^  "Laws  .  .  .  shall  bo  execute<liri  every  part  of  tin;  Itipublic  tVoiii  tln'  iiiDim-nt 
when  their  promulgation  can  he  known  there." 


94  ROUET   V.   SCHIFF.  [CHAP.    I. 

their  insertion  in  the  Journal  officiel.  Laws  are  obligatory  in  Paris  a 
full  clay  after  the  promulgation  ;  and  everywhere  else  a  full  day  after 
the  Journal  officiel  containing  them  arrives  at  the  capital  city  of  the 
county.  Tiie  law  as  to  sales  for  future  delivery  was  promulgated  in 
the  Journal  officiel  on  April  8,  1885,  and  the  Journal  officiel  reached 
Constantinople  on  the  18th  of  the  same  month  ;  the  new  law  therefore 
came  in  force  there  the  18th  of  April.  The  notes  in  question  were 
signed  the  following  11th  of  Ma}' ;  consequently  the  new  law  was  at 
that  date  promulgated  and  binding  on  all.  This  law  grants  an  action 
to  the  creditor  on  a  gaming  debt,  and  therefore  the  defence  set  up 
by  Rouet  should  be  rejected. 

"  For  these  reasons  :  —  overrules  Rouet's  plea  ;  adjudges  him  to  paj' 
Schiff  &  Co.  the  sum  of  £1400,  due  on  two  notes  of  £700  each,  with 
legal  interest,  etc." 

M.  Rouet  appealed,  but  on  April  21,  1887,  the  Court  of  Appeal  of 
Aix  affirmed  the  decision  of  the  lower  court. 

Error  was  brought  b}-  M.  Rouet  for  violation  of  Art.  1  of  the  Civil 
Code  and  for  misapplication  of  the  decree  of  Nov.  5,  1870,  and  of  the 
principles  governing  the  promulgation  and  publication  of  laws-,  in 
that  the  judgment  had  declared  applicable  ipso  jure  to  Frenchmen 
residing  abroad  a  law  which  had  not  been  published  there,  on  the  er- 
roneous ground  that  the  provisions  of  said  decree  were  not  relative 
solely  to  the  publication  of  laws  in  France. 

Judgment. 

The  Court.     As  to  the  only  error  alleged  : 

Article  1  of  the  Civil  Code  and  Article  1  of  the  decree  of  Nov.  5, 
1870,  apply  exclusively  to  the  execution  and  to  the  publication  of  laws 
in  French  territory  ;  they  cannot  be  applied  to  govern  the  case  where 
the  question  to  be  determined  is,  when  a  law  promulgated  and  pub- 
lished in  France  should  be  presumed  to  be  known  by  French  citizens 
residing  abroad.  In  the  silence  of  the  law  in  this  respect,  it  is  the 
duty  of  the  courts  to  determine  this  question  according  to  the  circum-^ 
stances  of  the  case,  especially  by  taking  account  of  the  daj^  of  arrival 
of  the  Journal  officiel  in  the  place  where  the  act  in  question  took 
place.  In  the  exercise  of  this  duty,  the  Court  of  Aix  has  found  that 
the  Journal  officiel  contauiing  the  law  of  March  28,  1885,  promulgated 
the  following  8th  of  April,  reached  Constantinople  April  18,  1885,  and 
that  the  notes  in  question  were  signed  May  11  following.  From  these 
facts  the  judgment  attacked,  whatever  other  grounds  it  was  rested  upon, 
might  properly  have  been  rested  on  this  conclusion,  that  the  law  of 
March  28,  1885,  was  known  to  the  maker  of  the  notes  when  he  signed 
them,  and  was  therefore  obligatory  on  him. 

Application  dismissed. 


SECT.    III.]  SWIFT    v.   TYSON.  95 

SWIFT  V.  TYSON. 

Supreme  Court  of  the  United  States.    1812. 

[Reported  16  Peters'  Reports,  1.] 

Mr.  Justice  Story  delivered  the  opinion  of  the  court. ^ 

This  cause  comes  before  us  from  the  Circuit  Court  of  the  Southern 
District  of  New  York,  upon  a  certificate  of  division  of  the  judges  ot 
that  court. 

The  action  was  brouglit  bv  the  plaintiff,  Swift,  as  endorsee,  against 
the  defendant,  Tyson,  as  acceptor,  upon  a  bill  of  exchange  dated  at 
Portland,  Maine,  on  the  first  day  of  May,  1836,  for  the  sum  of  one 
thousand  five  hundred  and  fort}-  dollars,  thirty  cents,  payable  six 
months  after  date  and  grace,  drawn  by  one  Nathaniel  Norton  and  one 
Jairus  S.  Keith  upon  and  accepted  by  Tyson,  at  the  cit}-  of  New  York, 
in  favor  of  the  order  of  Nathaniel  Norton,  and  by  Norton  endorsed  to 
the  plaintiff.     The  bill  was  dishonored  at  maturity.  .   .  . 

In  the  present  case,  the  plaintiff  is  a  bona  fide  holder  (without 
notice)  for  what  the  law^  deems  a  good  and  valid  consideration,  that  is, 
for  a  pre-existing  debt ;  and  the  only  real  question  in  the  cause  is, 
whether,  under  the  circumstances  of  the  present  case,  such  a  pre-exist- 
ing debt  constitutes  a  valuable  consideration  in  the  sense  of  the  general 
rule  applicable  to  negotiable  instruments.  We  say,  under  the  circum- 
stances of  the  present  case,  for  the  acceptance  having  been  made  in 
New  Y'ork,  the  argument  on  behalf  of  the  defendant  is,  that  the  con- 
tract is  to  be  treated  as  a  New  York  contract,  and  therefore  to  be  gov- 
erned by  the  laws  of  New  York,  as  expounded  by  its  courts,  as  well 
upon  general  principles  as  by  the  express  provisions  of  the  thirty- 
fourth  section  of  the  Judiciary  Act  of  1789,  ch.  20.  And  then  it  is 
further  contended,  that  by  the  law  of  New  York,  as  thus  expoutided 
by  its  courts,  a  pre-existing  debt  does  not  constitute,  in  the  sense  of 
the  general  rule,  a  valuable  consideration  applicable  to  negotiable  in- 
struments.  .   .  . 

To  say  the  least  of  it,  it  admits  of  serious  doubt,  whether  any  doc- 
trine upon  this  question  can  at  the  present  time  be  treated  as  finally 
established ;  and  it  is  certain  that  tiie  Court  of  Errors  liave  not  pro- 
nounced any  positive  opinion  upon  it. 

But,  admitting  the  doctrine  to  be  fully  settled  in  New  York,  it 
remains  to  ])e  considered  whether  it  is  obligatory  upon  this  court,  if  it 
difTers  from  the  principles  establislied  in  the  general  commercial  law. 
It  is  observable  that  the  courts  of  New  York  do  not  found  tlieir  deci- 
sions upon  this  point  upon  any  local  statute,  or  positive,  fixed,  or 
ancient  local  usage :  but  they  deduce  the  doctrine  from  the  general 
principles  of  commercial  law.  It  is,  however,  contended,  that  the 
thirty-fourth  section  of  the  Judiciary  Act  of  1 78!»,  ch.  20,  furnishes  a  rule 

1  Part  of  the  o|iini<)ii  is  fiiiiitted.  —  Ed. 


96  SWIFT    V.    TYSON.  (  CHAP.    I. 

obligatory  upon  this  court  to  follow  the  decisions  of  the  State  tribunals 
in  all  cases  to  which  they  apply.  That  section  provides  "  that  the 
laws  of  the  several  States,  except  where  the  Constitution,  treaties,  or 
statutes  of  the  United  States  shall  otherwise  require  or  provide,  shall 
be  regarded  as  rules  of  decision  in  trials  at  common  law  in  the  courts 
of  the  United  States,  in  cases  where  they  applj-."  In  order  to  main- 
tain the  argument,  it  is  essential,  therefore,  to  hold,  that  the  word 
"  laws,"  in  this  section,  includes  within  the  scope  of  its  meaning  the 
decisions  of  the  local  tribunals.  In  the  ordinary  use  of  language  it 
will  hardly  be  contended  that  the  decisions  of  courts  constitute  laws. 
They  are,  at  most,  only  evidence  of  what  the  laws  are  ;  and  are  not 
of  themselves  laws.  They  are  often  re-examined,  reversed,  and  qiiaU- 
fied  by  the  courts  themselves,  whenever  they  are  found  to  be  either 
defective,  or  ill-founded,  or  otherwise  incorrect.  The  laws  of  a  State 
are  more  usually  understood  to  mean  the  rules  and  enactments  promul- 
gated by  the  legislative  authority  thereof,  or  long  established  local 
customs  having  the  force  of  laws.  In  all  the  various  cases  which  have 
hitherto  come  before  us  for  decision,  this  court  have  uniformly  sup- 
posed that  the  true  interpretation  of  the  thirty-fourth  section  limited 
its  application  to  State  laws  strictlj'  local,  that  is  to  sa}-,  to  the  positive 
statutes  of  the  State,  and  the  construction  thereof  adopted  by  the  local 
tribunals,  and  to  rights  and  titles  to  things  having  a  permanent  locality, 
such  as  the  rights  and  titles  to  real  estate,  and  other  matters  immovable 
and  intraterritorial  in  their  nature  and  character.  It  never  has  been 
supposed  by  us  that  the  section  did  apply,  or  was  designed  to  apply, 
to  questions  of  a  more  general  nature,  not  at  all  dependent  upon  local 
statutes  or  local  usages  of  a  fixed  and  permanent  operation,  as,  for 
example,  to  the  construction  of  ordinar}'  contracts  or  other  written 
instruments,  and  especially  to  questions  of  general  commercial  law, 
where  the  State  tribunals  are  called  upon  to  perform  the  like  functions 
as  ourselves,  that  is,  to  ascertain  upon  general  reasoning  and  legal 
analogies,  what  is  the  true  exposition  of  the  contract  or  instrument,  or 
what  is  the  just  rule  furnished  by  the  principles  of  commercial  law  to 
govern  the  case.  And  we  have  not  now  the  slightest  difficulty  in  hold 
ing,  that  this  section,  upon  its  true  intendment  and  construction,  is 
strictly  limited  to  local  statutes  and  local  usages  of  the  character  before 
stated,  and  does  not  extend  to  contracts  and  other  instruments  of  a 
commercial  nature,  the  true  interpretation  and  effect  whereof  are  to  be 
sought,  not  in  the  decisions  of  the  local  tribunals,  but  in  the  general 
principles  and  doctrines  of  commercial  jurisprudence.  Undoubtedly,  the 
decisions  of  the  local  tribunals  upon  such  subjects  are  entitled  to,  and 
will  receive,  the  most  deliberate  attention  and  respect  of  this  court ;  but 
they  cannot  furnish  positive  rules,  or  conclusive  authority,  by  which  our 
own  judgments  are  to  be  bound  up  and  governed.  The  law  respecting 
negotiable  instruments  may  be  truly  declared  in  the  language  of  Cicero, 
adopted  by  Lord  Mansfield  in  Luke  v.  Lyde,  2  Burr.  R.  883,  887,  to 
be  in  a  great  measure,  not  the  law  of  a  single  country  onlv,  but  of  the 


SECT.    III.l      MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.       97 

commercial  world.  Non  eril  alia  lex  Romae,  alia  Athenis,  alia  nunc, 
alia  postliac,  &ed  et  apud  omnes  gentes,  et  omni  tempore,  una  eadem- 
que  lex  obtenebit. 

It  becomes  necessary  for  us,  therefore,  upon  the  present  occasion, 
to  express  our  own  opinion  of  the  true  result  of  the  commercial  law 
upon  the  question  now  before  us.  And  we  have  no  hesitation  in  say- 
ing, that  a  pre-existing  debt  does  constitute  a  vahiable  consideration  in 
the  sense  of  the  general  rule  already  stated,  as  applicable  to  negotiable 
instruments.   .   .  . 

We  are  all,  therefore,  of  opinion,  that  the  question  on  this  point, 
propounded  by  the  Circuit  Court  for  our  consideration,  ought  to  be 
answered  in  the  negative  ;  and  we  shall  accordingly  direct  it  so  to  be 
certified  to  the  Circuit  Court. 


MURRAY  V.  CHICAGO   &  NORTHWESTERN  RAILWAY    CO. 

Circuit  Court  of  thk  United  States,  N.  Dist.  Iowa.     1894. 
[Reported  62  Federal  Reporter,  24.] 

Shiras,  J.  In  the  amended  petition  filed  in  this  cause  it  is  averred 
that  during  the  years  1875  to  1887,  inclusive,  the  plaintiff  was  engaged 
at  Belle  Plaine,  Iowa,  in  the  business  of  buying  and  shipping  to 
Chicago  grain,  cattle,  and  hogs,  the  same  being  shipped  in  car-load 
lots  over  the  line  of  railway  owned  and  operated  by  the  defendant 
company  ;  that,  at  the  several  times  when  the  shipments  were  made, 
the  defendant  company  had  posted  at  its  stations,  including  that  at 
Belle  Plaine,  printed  lists  containing  the  tariff  rates  charged  by  the 
company  for  the  transportation  of  freight  over  its  line  ;  that,  when 
plaintiff  shipped  his  stock,  he  applied  to  the  defendant  and  its  station 
agent  at  Belle  Plaine  for  the  lowest  freight  rates  cliarged,  and  was 
answered  by  the  defendant  and  its  station  agent  that  the  posted  rates 
were  the  lowest  and  only  rates  charged  by  the  company,  no  rebates 
or  concessions  in  any  form  being  made  therefrom  to  any  one  ;  that 
thereupon  the  plaintiff  shipped  liis  stock,  and  paid  the  posted  rates 
therefor ;  that  in  fact  such  representations  were  false,  and  were  made 
to  mislead  the  plaintiff ;  that  in  fact,  as  the  defendant  and  its  agents 
well  knew,  rebates  and  concessions  were  then  being  made  to  other 
parties  who  were  competitors  in  business  of  tlie  plaintiff,  to  the  great 
injury  of  plaintiff;  that  the  fact  that  these  rel)ates  were  allowed  to  the 
cbmpctitors  of  plaintiff  was  kept  concealed  by  the  defendant,  and  was 
not  discovered  by  the  plaintiff  until  within  eighteen  months  previous  to 
the  commencement  of  tliis  action  :  that  upon  shipments  of  grain  made 
from  points  west  of  P>('llo  Phiine  to  Chicago  the  defendant  charged  the 
shippers  thereof  some  $li)  per  car  less  than  it  was  then  charging  the 

7 


98  MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.       [CHAP.    I. 

plaintiff  for  shipping  the  same  kind  of  grain  from  Belle  Plaine  to 
Chicago,  thus  discriminating  against  the  plaintiff,  and  compelling  him 
to  pa}'  an  excessive  and  unreasonable  rate.  To  recover  the  damages 
claimed  to  have  been  thus  caused  him,  the  plaintiff  brought  tiiis  action 
in  the  Superior  Court  of  the  cit}'  of  Cedar  Rapids,  Iowa,  whence  it  was 
removed  to  this  court  upon  the  application  of  the  defendant  company. 
On  part  of  the  defendant,  a  motion  for  a  more  specific  statement  has 
been  filed,  followed  b}'  a  demurrer,  and  both  have  been  submitted  to 
the  court. 

The  principal  point  made  in  the  demurrer  is  that  the  petition  on  its 
face  shows  that  the  shipments  made  from  Belle  Plaine,  Iowa,  to 
Chicago,  111.,  were  in  the  nature  of  interstate  conmierce,  the  regulation 
of  which  is  reserved  to  Congress,  exclusively,  by  sect.  8,  art.  1,  of 
the  Constitution  of  the  United  States,  and  that,  at  the  dates  of  the 
several  shipments  in  the  petition  described,  there  was  no  act  of  Congress 
or  other  law  regulating  commerce  between  the  several  States.  If  I 
understand  correctl}-  the  position  of  the  defendant  company,  it  is  that, 
as  this  action  was  commenced  in  the  State  court,  this  court,  upon 
removal,  succeeds  only  to  the  jurisdiction  which  the  State  court  might 
have  exercised  rightfully  in  case  no  removal  had  been  had  ;  that  in  the 
State  court  the  action  could  not  be  maintained  for  two  reasons  :  First, 
that  as  sect.  8,  art.  1,  of  the  Constitution  of  the  United  States  con- 
fers the  right  to  regulate  interstate  commerce  exclusively  upon  Congress, 
thereby  depriving  the  States  of  the  power  to  legislate  touching  the  same, 
it  follows  that  State  courts  are  deprived  of  all  jurisdiction  over  cases 
growing  out  of  interstate  commerce  ;  and,  second,  that  there  is  no 
common  law  of  the  United  States  ;  that  the  common  law  of  England 
has  become  the  common  law  of  the  several  States,  in  such  sense  that 
each  State  has  its  own  common  law  ;  and  that  the  common  law  of  the 
State  of  Iowa  cannot  be  applied  to  interstate  commerce,  in  view  of  the 
provisions,  already  cited,  of  the  Constitution  of  the  United  States. 
Dealing  with  these  propositions  in  the  reverse  order  of  their  state- 
ment, is  it  true  that  the  principles  of  the  common  law  are  not  in  force 
in  the  United  States  with  respect  to  such  subjects  as  ai-e  placed  within 
the  exclusive  control  of  Congress?  It  will  not  be  questioned  that, 
before  the  Revolution,  the  common  law  was  in  force,  so  far  as  appli- 
cable, in  the  several  colonies  then  existing.  Thus,  in  U.  S.  v.  Reid, 
12  How.  361,  363,  it  is  said:  "The  colonists  who  established  the 
English  colonies  in  this  countr}'  undoubtedly  brought  with  them  the 
common  and  statute  laws  of  England,  as  they  stood  at  the  time  of  their 
emigration,  so  far  as  they  wei'e  applicable  to  the  situation  and  local 
circumstances  of  the  colony." 

When  the  Constitution  of  the  United  States  was  adopted,  it  was  based 
upon  the  general  principles  of  the  common  law,  and  its  correct  inter- 
pretation requires  that  the  several  provisions  thereof  shall  be  read  in 
the  light  of  these  general  principles.  The  final  disruption  of  all  politi- 
cal ties  between  the  colonies  and  the  mother  country  did  not  terminate 


SECT.    III.]      MURRAY  V.  CHICAGO  A  XORTHWESTKRN  RAILWAY  CO.      99 

Uic  existence  of  llie  eoninioii  law  in  the  colonies.  It  came  criginally 
into  tlie  several  colonies,  not  l>y  force  of  legislative  enactments  to  that 
effect  I)}-  the  Parliament  of  Great  Britain,  and  the  effect  of  which  might 
be  held  to  have  terminated  wlien  tlie  colonies  became  independent,  but, 
as  is  said  by  Mr.  Justice  Story,  speaking  for  the  Supreme  Court  in  Van 
Ness  V.  Pacard.  2  Pet.  137,  144:  *'  Our  ancestors  brought  with  them 
its  general  principles,  and  claimed  it  as  their  birthrigiit ;  but  they 
brought  with  them  and  adopted  only  that  portion  which  was  applica- 
ble to  their  situation." 

In  Cooley,  Const.  Lira.  31.  it  is  said:  "From  the  first  the  colo- 
nists in  America  claimed  the  benefit  and  protection  of  the  common 
law.  In  some  particulars,  however,  tlie  common  law,  as  then  exist- 
ing in  P3ngland,  was  not  suited  to  their  condition  and  circumstances 
in  the  new  country,  and  those  particulars  they  omitted  as  it  was 
put  in  practice  by  them.  The}'  also  claimed  the  benefit  of  such 
statutes  as,  from  time  to  time,  had  been  enacted  in  modification 
of  this  bod}-  of  rules  ;  and,  when  the  difficulties  with  the  home  gov- 
ernment sprung  up,  it  was  a  source  of  immense  moral  power  to  the 
colonists  that  they  were  able  to  show  that  the  rights  they  claimed 
were  conferred  by  the  common  law,  and  that  the  King  and  Parliament 
were  seeking  to  deprive  them  of  the  common  birthright  of  English- 
men. .  .  .  While  colonization  continued, — that  is  to  say,  until  the 
war  of  the  Revolution  actually  commenced,  —  these  decisions  were 
authority  in  the  colonies,  and  the  changes  made  in  the  common  law  up 
to  the  same  period  were  operative  in  America  also,  if  suited  to  the 
condition  of  things  here.  The  opening  of  the  war  of  the  Revolution 
is  the  point  of  time  at  which  the  continuous  stream  of  the  common  law 
became  divided,  and  that  portion  which  had  been  adopted  in  America 
flowed  on  bv  itself,  no  longer  subject  to  changes  from  across  the  ocean, 
but  liable  still  to  be  gradually  modified  through  changes  in  the  modes 
of  tliought  and  of  business  among  the  people,  as  well  as  through 
statutory  enactments.  The  colonies  also  had  legislatures  of  their  own, 
bv  which  laws  had  been  passed  which  were  in  force  at  the  time  of  the 
separation,  and  which  remained  unaffected  thereby.  When,  therefore, 
they  emerged  from  the  colonial  condition  into  that  of  indei)('nd('nce, 
the  laws  which  governed  them  consisted  —  First,  of  the  common  law 
of  England,  so  far  as  they  had  tacitly  adopted  it,  as  suited  to  their  con- 
dition ;  second,  of  the  statutes  of  England  or  of  Great  Britain,  amend- 
atory of  tlie  common  law,  which  tliey  had  in  like  manner  adopted  ; 
and,  third,  of  the  colonial  statutes.  The  first  and  second  constituted 
tlic  American  common  law,  and  by  this,  in  great  part,  are  rights  ad- 
judged and  wrongs  redressed  in  the  American  States  to  this  day." 

Thus  it  appears  that,  when  the  Constitution  of  the  United  States  was 
adopted,  the  general  i-ules  of  the  common  law,  in  so  far  as  they  were 
applicable  to  the  conditions  then  existing  in  the  colonies,  and  subject 
to  the  modifications  necessary  to  adapt  them  to  the  uses  and  needs  of 
the  people,  were  recognized  and   were  in  force;  in  the  colonies,  and  the 


100      MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.       [CHAP.   I. 

I)eople  thereof  were  entitled  to  demand  the  enforcement  thereof  tlirongh 
the  judicial  tribunals  then  existing.  The  adoption  of  the  Constitution 
did  not  deprive  the  people  of  the  several  colonies  of  the  protection  and 
advantages  of  the  common  law.  The  Constitution  itself  recognizes  the 
fact  of  the  continued  existence  of  the  common  law,  and  indeed  it  is 
based  upon  the  principles  thereof,  and  its  correct  interpretation  requires 
that  its  provisions  shall  be  read  and  construed  in  the  light  thereof.  By 
sect.  2,  art.  3,  of  the  Constitution  it  is  declared  that:  "The  judicial 
power  shall  extend  to  all  cases  in  law  and  equity,  arising  under  this 
Constitution  ;  the  laws  of  the  United  States,  and  treaties  made  or  which 
shall  be  made,  under  their  authority  ;  ...  to  all  cases  of  admiralt3'  and 
maritime  jurisdiction.  .   .   ." 

In  this  section  we  have  a  clear  recognition  of  the  existence  of  the 
several  sj'stems  of  law,  equit\-,  and  admiralty.  The  section  does  not 
create  these  sj'stems,  but,  recognizing  their  existence,  it  declares  the 
extent  of  federal  jurisdiction  in  regard  thereto.  The  rules  and  prin- 
ciples which  form  the  laws  maritime  are  not  created  by  the  Constitution, 
for,  as  is  said  b}'  Chief  Justice  Marshall,  in  Insurance  Co.  v.  Canter, 
1  Pet.  511,  546  :  "A  case  in  admiraltv  does  not,  in  fact,  arise  under 
the  Constitution  or  laws  of  the  United  States.  These  cases  are  as  old 
as  navigation  itself,  and  the  law  admiralty  and  maritime,  as  it  has 
existed  for  ages,  is  applied  by  our  courts  to  the  eases  as  they  arise." 

In  Xew  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  344, 
390,  it  is  declared  that:  "  By  the  Constitution,  the  entire  admiralty 
power  of  the  country  is  lodged  in  the  federal  judiciar}',  and  Congress 
intended,  b}'  the  ninth  section,  to  invest  the  district  courts  with  this 
power,  as  courts  of  original  jurisdiction."' 

The  Constitution  does  not  create  a  S3'stem  of  maritime  law,  nor  does 
it  enact  that  the  system,  as  prevailing  in  England  or  in  Europe,  shall 
become  the  law  of  the  United  States  ;  but,  recognizing  the  fact  that  the 
law  maritime  was  then  in  force  in  the  colonies,  it  confers  the  juristlic- 
tion  upon  the  federal  courts.  The  same  is  true  of  the  equitable  ju.ris- 
diction.  It  is  certainly  not  necessary  to  cite  authorities  in  support  of 
the  proposition  that  the  Constitution  of  the  United  States  neither 
created  nor  enacted  a  sj-stem  of  equitable  jurisprudence  and  procedure, 
but,  recognizing  the  existence  of  the  system,  it  conferred  upon  the 
courts  of  the  United  States  jurisdiction  in  equity,  maintaining  the  pre- 
existing distinction  between  equitable  and  legal  remedies.  Is  it  not 
clear  that  the  same  is  true  in  regard  to  the  common  law?  At  the  time 
of  the  adoption  of  the  Constitution  there  was  in  existence  in  the 
colonies  the  S3-stem  of  the  common  law,  of  equit}',  and  of  admiralt}'. 
It  was  not  the  purpose  of  the  Constitution  to  abrogate  an}-  one  of  these 
systems.  One  of  the  main  objects  sought  to  be  accomplished  was  to 
establish  the  extent  of  the  legislative  and  judicial  powers  of  the 
national  government  then  being  created.  Owing  to  tlie  fact  that  it  was 
not  proposed  to  destroy  the  State  governments  then  existing,  but,  con- 
tinuing these,  to  create  a  national  government,  to  be  paramount  and 


SECT.    III.]      MUKRAY  V.  CHICAGO  &  NOKTIIWESTERN  RAILWAY  CO.     101 

supreme  within  its  limited  s[)lieic,  it  became  a  necessity  that  the 
extent  of  the  powers  of  each  government  should  be  defined  ;  and,  in  a 
general  sense,  it  may  be  said  that  the  plan  adopted  was  to  confer  u[)on 
the  national  government  the  power  of  control  over  subjects  affecting 
the  country  or  people  at  large,  reserving  to  the  States  control  over  all 
that  are  local,  or  which  do  not  require  a  uniform  system  or  law  for 
their  proper  regulation.  Can  it  be  denied  that,  at  the  time  of  the 
adoption  of  the  Constitution,  the  people  of  the  several  States  possessed 
the  rights,  and  were  subject  to  the  duties  and  obligations,  recognized 
and  enforced  b}'  the  principles  and  modes  of  procedure  forming  the 
separate  systems  of  law.  equity,  and  admiralty?  Is  there  an}'  ground 
for  holding  that  it  was  the  purpose  of  the  Constitution  to  recognize  the 
continuing  existence  of  the  systems  of  equity  and  admiralt}',  but  to 
den}'  the  existence  of  the  common  law,  or  to  refuse  its  recognition? 
Such  a  construction  of  its  provisions  is  clearl}'  inadmissible.  The 
principles  and  modes  of  procedure  of  the  three  systems  of  law,  equitv, 
and  admiralty',  in  force  previous  to  the  adoption  of  the  Constitution, 
remained  in  force  after  its  adoption,  save  as  to  such  modifications  as 
were  created  by  the  provisions  of  the  Constitution.  That  this  is  the 
true  view  of  the  question  appears,  not  only  from  the  references  found 
in  the  Constitution,  and  the  amendments  thereto,  to  the  common  law, 
as  a  recognized  and  existing  system,  but  in  the  judiciary  act  of  1789 
the  several  branches  of  the  law,  such  as  the  law  of  nations,  the  common 
law,  the  admiraltv  and  maritime  law,  and  equity  are  fully  recognized 
as  then  existing,  and  the  jurisdiction  arising  under  the  same  is  divided 
between  the  courts  created  by  that  act.  That  the  principles  of  the 
common  law  have  always  been  recognized  and  enforced  in  proper  cases 
l>y  the  courts  of  the  United  States  is  a  proposition  so  plain  that  a  cita- 
tion of  the  cases  is  not  necessary  for  its  support ;  yet,  to  show  the 
course  of  judicial  action  in  this  particular,  a  few  of  the  numerous  cases 
to  be  found  in  the  decisions  of  tiie  Supreme  Court  will  be  quoted  from. 
In  Cox  V.  U.  S..  G  Pet.  172,  204,  wherein  suit  was  brought  in  the 
United  States  court  in  Louisiana  upon  the  bond  of  a  navy  agent,  it 
was  held  that  the  l)ond  must  be  deemed  to  be  a  contract  performablc  at 
the  city  of  Washington,  "  and  the  liability  of  the  parties  must  be  gov- 
erned by  the  rules  of  the  common  law."  To  the  same  effect  is  the 
ruling  in  Duncan  v.  U.  S.,  7  Pet.  43o.  In  Swift  v.  Tyson,  16  Pet. 
1,  18,  —  a  case  involving  the  law  of  negotiable  paj)er,  —  the  Supreme 
Court  held  that  the  provisions  of  the  thirty-fourth  section  of  the  .Judi- 
ciary Act  of  1789  did  not  require  the  courts  of  the  United  States  to  follow 
the  ruling  of  the  State  courts  upon  tlie  princi|)les  estal>lishe(l  in  the 
general  commercial  law,  it  being  said  by  Mr.  Justice  Story,  s[)eaking 
for  the  court,  that :  "  We  have  not  now  tlie  slightest  dilliculty  in  holding 
that  this  section,  upon  its  true  intendment  and  construction,  is  strictly 
limited  to  local  statutes  and  local  usages  of  the  character  before  stated, 
and  does  not  extend  to  contracts  and  other  instruments  of  a  conniier- 
cial  nature,  the  true  inter[)retalion  and  effect  whereof  are  to  be  sought, 


102        MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      [CHAP.  I. 

not  in  the  decisions  of  the  local  tribunals,  but  in  the  general  principle 
and  doctrines  of  commercial  jurisprudence." 

To  the  same  effect  is  the  ruling  in  Gates  v.  Bank,  100  U.  S.  239,  and 
Railroad  Co.  r.  National  Bank,  102  U.  S.  14.  In  the  latter  case  it  is 
said  :  "  The  decisions  of  the  New  York  court,  which  we  are  asked  to 
follow  in  determining  the  right  of  parties  under  a  contract  there  made, 
are  not  in  exposition  of  an}'  law  local  to  tliat  State,  but  as  to  their 
rights  under  the  general  commercial  law  existing  throughout  the  Union, 
except  where  it  may  have  been  modified  or  changed  by  some  local 
statute.  It  is  a  law  not  peculiar  to  one  State,  or  dependent  upon  local 
authority,  but  one  arising  out  of  the  usages  of  the  commercial  world." 

In  Fenn  v.  Holmes,  21  How.  481,  484,  it  is  said:  "In  every  in- 
stance in  which  this  court  has  expounded  tlie  phrases  '  proceedings  at 
common  law'  and  'proceedings  in  equity,'  with  reference  to  the  exer- 
cise of  the  judicial  powers  of  the  courts  of  the  United  States,  they  will 
be  found  to  have  interpreted  the  former  as  signifying  the  application 
of  the  definitions  and  principles  and  rules  of  the  common  law  to  tiie 
rights  and  obligations  essentially  legal,  and  the  latter  as  meaning  tlie 
administration  with  reference  to  equitable,  as  contradistinguished  from 
legal,  rights  of  the  equity  law,  as  defined  and  enforced  by  the  Court  of 
Chancery  in  England." 

In  Railroad  Co.  v.  Lockwood,  17  Wall.  357,  the  question  of  the 
power  of  a  common  carrier  to  exempt  himself  by  contract  from  the 
liability  placed  upon  him  by  the  common  law  is  discussed  at  length, 
and  it  was  held  that  the  court  was  bound  to  decide  the  question  upon 
the  ground  of  public  policy,  and  according  to  the  principles  of  general 
commercial  law. 

The  case  of  Kohl  v.  U.  S.,  91  U.  S.  367,  374-376,  presented  the 
question  whether  the  United  States  could  exercise  the  right  of  eminent 
domain  for  the  purpose  of  condemning  land  in  the  city  of  Cincinnati, 
to  be  used  as  a  site  for  a  public  post-otiice.  The  right  was  maintained, 
it  being  said  that :  "  When  the  power  to  establish  post-offices  and  to 
create  courts  within  the  States  was  conferred  upon  the  federal  govern- 
ment, included  in  it  was  authority  to  obtain  sites  for  such  offices  and 
for  court-houses,  and  to  obtain  them  by  such  means  as  were  known 
and  appropriate.  The  right  of  eminent  domain  was  one  of  those 
means,  well  known  when  the  Constitution  was  adopted,  and  employed 
to  obtain  lands  for  public  uses.  Its  existence,  therefore,  in  the  grantee 
of  that  power,  ought  not  to  be  questioned.  .  .  .  The  right  of  eminent 
domain  always  was  a  right  at  common  law.  It  was  not  a  right  in 
equity,  nor  was  it  even  the  creature  of  a  statute.  The  time  of  its  exer- 
cise may  have  been  prescribed  by  statute,  but  the  right  itself  was 
superior  to  any  statute.  ...  It  is  difficult,  then,  to  see  why  a  proceed- 
ing to  take  land  by  virtue  of  the  government's  eminent  domain,  and 
determining  the  compensation  to  be  made  for  it,  is  not,  within  the  mean- 
ing of  the  statute,  a  suit  at  common  law,  when  initiated  in  a  court.  It 
is  an  attempt  to  enforce  a  legal  right." 


SECT.    III.]      MURRAY  V.  CHICAGO  &  XOHTHWESTERN  RAILWAY  CO.     103 

In  Moore  r.  U.  S.,  91  U.  S.  270,  the  question  was,  by  what  law  is 
the  Court  of  Claims  to  be  governed  in  respect  to  the  admission  of  evi- 
dence in  the  hearings  liad  before  it?  and  tlie  Supreme  Court  held  that: 
"  In  our  opinion  it  nuist  be  governed  b}'  law  ;  and  we  know  of  no  sys- 
tem of  law  by  which  it  should  be  governed  other  than  the  common  law. 
That  is  the  system  from  whicii  our  judicial  ideas  and  legal  definitions 
are  derived.  The  language  of  the  Constitution  and  of  many  acts  of  Con- 
gress could  not  be  understood  without  reference  to  the  common  law. 
The  great  majority  of  contracts  and  transactions  which  come  before 
the  Court  of  Claims  for  adjudication  are  permeated,  and  are  to  be 
adjudged,  by  the  principles  of  the  common  law." 

In  Atchison,  T.  &  S.  F.  R.  Co.  v.  Denver  &  N.  O.  R.  Co.,  110  U.  S. 
667.  681,  it  is  said  :  "  The  Atchison,  Topeka  &  Santa  Fe  Company,  as 
the  lessee  of  the  Pueblo  &  Arkansas  Valle}"  Railroad,  has  the  statutory 
right  to  establish  its  own  stations,  and  to  regulate  tlietirae  and  manner 
in  which  it  will  carry  persons  and  property,  and  the  price  to  be  paid 
tlicrefor.  As  to  all  these  matters  it  is  undoubtedly  subject  to  the 
power  of  legislative  regulation,  but,  in  the  absence  of  regidation,  it 
owes  only  sucii  duties  to  the  public,  or  to  individuals,  associations,  or 
corporations,  as  the  common  law,  or  some  custom  having  tlie  force  of 
law,  has  established  for  the  government  of  those  in  its  condition." 

In  Railroad  Co.  v.  Baugh,  149  U.  S.  308,  was  presented  the  ques- 
tion whether  the  engineer  and  fireman  of  a  locomotive  engine  are  fellow 
servants,  so  that  the  fireman  could  not  recover  fi'om  the  railway  com- 
l)any  damages  for  injuries  caused  by  the  negligence  of  tlie  engineer, 
tliere  being  no  statutory  enactment  to  that  efl!ect  in  the  State  of  Ohio, 
wherein  the  accident  happened  Under  the  decisions  of  the  Supreme 
Court  of  Oliio,  liability  on  part  of  tlie  railway  company  existed  ; 
but  the  Supreme  Court  of  the  United  States  refused  to  follow  these  rul- 
ings, holding  that :  "  The  question  is  essentially  one  of  general  law. 
It  does  not  depend  upon  any  statute.  It  does  not  spring  from  local 
usage  or  custom.  There  is  in  it  no  rule  of  property,  but  it  rests  upon 
those  considerations  of  right  and  justice  whicli  iiave  been  gathered  into 
the  great  bod}'  of  the  rules  and  principles  known  as  the  '  common 
law.'  There  is  no  question  as  to  the  power  of  the  States  to  legislate 
and  change  the  rules  of  the  common  law  in  this  respect,  as  in  others  ; 
but,  in  the  absence  of  such  legislation,  the  question  is  one  determin- 
able only  by  the  general  priiK;iples  of  that  law." 

Citations  of  this  character  from  the  decisions  of  the  Supreme  Court 
might  be  continued  almost  without  limit.  From  them  it  appears, 
beyond  question,  that  the  Constitution,  the  Judiciary  Act  of  1789,  and 
all  subsequent  statutes  upon  the  same  subject,  are  based  upon  the 
general  principles  of  the  common  law,  and  that,  to  a  large  extent,  the 
legislative  and  judicial  action  of  the  government  would  be  without  sup- 
port and  witliout  meaning  if  they  cannot  be  interpreted  in  the  light  of 
the  common  law.  When  the  Constitution  was  adopted,  it  was  not  the 
design  of  the  framers  tliereof  to  create  any  new  systems  of  general  law. 


104      MUKRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      [CHAP.   1.. 

nor  to  supplant  those  already  in  existence.  At  that  time  there  were 
in  existence  and  in  force  in  the  colonies  or  States,  and  among  the 
people  thereof,  the  law  of  nations,  the  law  admiralty  and  maritime,  the 
common  law,  including  commercial  law,  and  the  system  of  equity. 
Upon  these  foundations  the  Constitution  was  erected.  The  problem 
sought  to  be  solved  was  not  whether  the  Constitution  should  create  or 
enact  a  law  of  nations,  of  admiralt}',  of  equity,  or  the  like,  but  rather 
how  should  the  executive,  legislative,  and  judicial  powers  and  duties 
based  upon  these  systems,  and  necessary  for  the  proper  development 
and  enforcement  thereof,  be  apportioned  between  the  national  and 
State  governments.  The  principles,  duties,  and  obligations  inhering 
in  these  S3'stems  of  law  were  already  in  force.  The  Constitution  neither 
created  nor  adopted  them,  but,  recognizing  the  fact  that  they  were  in 
fact  in  existence,  and  were  the  possessions  of  the  people,  it  proceeded 
to  apportion  the  exercise  thereof  between  the  national  and  State  gov- 
ernments. The  general  line  of  division,  as  already  said,  is  based  upon 
the  principle  ot  national  control  over  sul^jects  atfecting  tLie  country 
and  the  people  as  a  whole,  and  wherein  uniformity  of  rule  and  control 
is  desirable,  if  not  indispensable,  and  of  State  control  over  subjects  of 
local  interests.  The  result  was  that  upon  the  national  government 
was  conferred,  as  to  some  subjects,  paramount  and  exclusive  control ; 
as  to  others,  paramount,  but  not  exclusive,  control,  unless  Congress  b}' 
legislation  excluded  State  action  ;  as  to  others,  control  concurrent  with 
the  States.  The  division  thus  made  is  as  to  the  subjects  of  legislative 
and  judicial  jurisdiction,  and  not  a  division  of  sj'stems  of  law.  The 
Constitution  does  not  place  under  national  control  the  law  of  nations 
and  of  admiralty,  and  under  State  control  common  law  and  equity,  but 
it  divides  the  subjects  of  governmental  control,  and  each  subject  car- 
ries with  it  the  law  or  s^'stem  appropriate  thereto.  The  subject-matter 
of  dealing  with  other  nations  is  conferred  exclusively  upon  the  na- 
tional government,  and  of  necessity  all  questions  arising  under  the  law 
of  nations  and  the  right  to  seek  changes  in  this  law  b}-  conventions 
with  other  governments  are  committed  to  the  national  government. 
The  right  to  regulate  foreign  commerce  is  conferred  exclusivelv  upon 
Congress,  and  of  necessity  that  confers  upon  the  national  legislature 
and  judiciary  the  duty  of  enforcing  the  law  maritime.  The  right  to 
regulate  interstate  commerce  is  conferred  exclusivel}-  upon  Congress, 
and,  when  it  legislates,  the  resulting  statute  will  be  interpreted  with 
reference  to  the  general  principles  of  the  common  law.  In  the  absence 
of  Congressional  regulation  of  interstate  commerce,  the  courts  called 
upon  to  decide  cases  arising  out  of  interstate  commerce  must  apply 
the  principles  of  the  common  law.  So,  also,  when  called  upon  to 
decide  cases  arising  out  of  intrastate  commerce,  when  there  is  no  state 
statute  or  law  applicable  thereto,  the  courts  must  appl}*  the  common 
law.  The  apportionment  of  control  over  foreign,  inter  and  intra  state 
commerce,  made  b\'  the  Constitution,  did  not  affect  the  applicability  of 
the  common  law  thereto.     It  divided  the  control  over  the  general  sub 


SECT.    III.]     MURRAY  V.   CHICAGO  A  NORTHWESTERN  RAILWAY  CO. 


105 


ject  of  commerce,  and  apportioned  to  the  national  government  exclu- 
sive legislative  control  over  foreign  and  interstate  commerce  ;  and  this 
apportionment  carried  with  it  the  right  to  confer  upon  the  national 
judiciary  jurisdiction  over  cases  involving  foreign  and  interstate  com- 
merce, and,  in  the  exercise  of  this  jurisdiction,  the  courts  are  bound 
by  the  general  principles  of  the  common  law,  save  where  the  same  have 
been  changed  by  legislative  enactment. 

To  me  it  seems  clear,  beyond  question,  that  neither  in  the  Constitu- 
tion, nor  in  the  statutes  enacted  by  Congress,  nor  in  the  judgments  of 
the  Supreme  Court  of  the  United  States,  can  there  be  found  any  sub- 
stantial support  for  the  proposition  that,   since  the  adoption  of  the 
Constitution,  the  principles  of  the  common  law  have  been  wholly  abro- 
gated touching   siicli  matters  as  aie  by  tliat  instrument  placed  within 
the  exclusive  control  of  the  national  government.     But  it  is  not  to  be 
denied  that  support  to  the  proposition  is  to  be  found  in  part  of  the 
reasoning  employed  by  Mr.  Justice  Matthews  in  announcing  the  opin- 
ion of  the  Supreme  Court  in  Smith  r.  Alabama,  124  U.  S.  465.     This 
case  came  before  the  Supreme  Court  upon  a  writ  of  error  bringing 
into  review  a  judgment  of  the  Supreme  Court  of  Alabama  artirming  a 
judgment  of  the  city  court  of  Mobile  in  habeas  corpus  proceedings, 
and  which  presented  the  question  whether  a  statute  of  the   State  of 
Alabama,  providing  for  the  examination  and  licensing  engineers  en- 
gaged in   operating   locomotive  engines   in    that  State,   was  void,  as 
applied   to  engineers   running  interstate  trains,  on  the  ground  that  it 
was  an  attempt  to  regulate  interstate  commerce.     The  case  did  not  in 
fact  involve  any  question  in  regard  to  the  common  law.     The  judg- 
ment of  the  court  was  that  the  statute  was  passed  to  secure  the  safety 
of  the  public  in  person  and  property,  and  any  effect  it  had  ui)on  inter- 
state commerce  was   incidental  and  remote  ;  and  the  validity  of  the 
statute  was  sustained.     In  the  course  of  the  opinion  it  is  pointed  out 
that  the  laws  of  the  States  provide  for  remedies  in  cases  of  nonfea- 
sance or  misfeasance  on  part  of  common  carriers,  and  that  it  had  never 
been  held  that  such  laws  were  void,  as  being  unconstitutional  regula- 
tions by  the  State  of  interstate  commerce.     Following  the.se  proposi- 
tions, we  find  it  said  :  "  But  for  the  provisions  on  the  sul)ject  found  in 
the  local  law  of  each  State,  there  would  be  no  legal  obligation  on  the 
part  of  tlie  carrier,  whether  ex  contrdctu  or  ex  cleUcto,  to  those  who 
employ  him  ;   or,  if  the  local  law  is  held  not  to  apply  wliere  the  carrier 
is  engaged   in  foreign  or  interstate  commerce,  then,  in  the  absence  of 
laws  passed  by  Congress  or  presumed  to  be  adopted  b}-  it,  there  can  be 
no  rule  of  decision  based  upon  rights  and  duties  supposed  to  grow  out 
of  the   relation  of  such  carriers  to  the  public  or  to  individuals.     In 
other  words,  if  the   law   of  the   particular  State  does  not  govern  that 
relation,   and   prescribe  the   rights   and  duties,   which  it  implies,  then 
there  is  and  can  be  no  law  tliat  does  until  Congress  expressly  supplies 
It,  or  is  held  by  implication   to  have  supplied  it,  in  cases  within  its 
iurisdiction  over  foreign  ainl  interstate  commerce.     The  failure  of  Con- 


106        MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      [CHAP.    I. 

gress  to  legislate  can  be  construed  onl^-  as  an  intention  not  to  disturb 
what  already  exists,  and  is  tlie  mode  by  which  it  adopts,  for  cases 
witliin  the  scope  of  its  power,  the  rule  of  the  State  law,  which,  until 
displaced,  covers  the  subject.  There  is  no  common  law  of  the  United 
States,  in  the  sense  of  a  national  customary  law,  distinct  from  the 
common  law  of  England,  as  adopted  bj^  the  several  States,  each  for 
Itself,  applied  as  its  local  law,  and  subject  to  such  alterations  as  may 
be  provided  by  its  own  statutes.  .  .  .  There  is,  however,  one  clear 
exception  to  the  statement  that  there  is  no  national  common  law.  The 
interpretation  of  the  Constitution  of  the  United  States  is  necessarily 
influenced  by  the  fact  that  its  provisions  are  framed  in  the  language  of 
the  English  common  law,  and  are  to  be  read  in  the  light  of  its  history. 
The  code  of  constitutional  and  statutory'  construction,  which,  therefore, 
is  gradually  formed  b}'  the  judgments  of  this  court,  in  the  application 
of  the  Constitution  and  the  laws  and  treaties  made  in  pursuance  thereof, 
has  for  its  basis  so  much  of  the  common  law  as  may  be  implied  in  the 
subject  and  constitutes  a  common  law,  resting  on  national  authority." 

The  meaning  to  be  given  to  this  last  sentence  quoted  from  the  opin- 
ion of  Mr.  Justice  Matthews  is  not  at  all  clear.  If  it  be  true  that  the 
Supreme  Court,  in  construing  the  provisions  of  the  Constitution,  and 
the  laws  and  treaties  made  in  pursuance  thereof,  has  the  right  to  adopt, 
as  the  basis  of  its  constitution,  so  much  of  the  common  law  as  mtxy  be 
implied  in  the  subject,  which  proposition  seems  to  be  affirmed,  then  is 
it  not  true  that  the  principles  of  the  common  law,  so  far  as  applicable 
to  the  subject-matter,  are  recognized  as  in  force  touching  matters  of 
national  control?  It  is  evident  that  it  was  present  to  the  mind  of 
the  learned  justice  whose  opinion  we  are  considering  that  it  would  not 
do  to  hold  that  the  failure  of  Congress  to  legislate  touching  the  duties 
and  obligations  of  common  carriers  engaged  in  interstate  commerce 
left  the  public  without  any  law  for  its  protection,  and  therefore  the 
suggestion  is  made  that :  "  The  failure  of  Congress  to  legislate  can  be 
construed  only  as  an  intention  not  to  disturb  what  already  exists,  and 
is  the  mode  b^^  which  it  adopts,  for  cases  within  the  scope  of  its  power, 
the  rule  of  the  State  law." 

The  rules  prevailing  in  the  different  States  ma}'  be  variant  or  antag- 
onistic. A  deliver}'  of  goods  may  be  made  to  a  common  carrier  in 
California,  for  transportation  to  New  York.  Do  the  legal  relations, 
duties,  and  obligations  existing  between  the  shippers  and  carrier  vary 
and  change  as  the  shipment  passes  State  boundaries,  so  as  to  accord 
with  the  local  law  of  each  State  through  which  the  carrier  may  choose 
to  take  them?  Upon  such  a  theory,  what  becomes  of  the  principle 
that  the  exclusive  control  of  foi'eign  and  interstate  commerce  was  com- 
mitted to  Congress  in  order  to  secure  a  uniform  rule  toucliing  the 
same?  I  would  amend  the  statement  of  Mr.  Justice  Matthews  so  that 
it  should  read  :  "  The  failure  of  Congress  to  legislate  can  be  construed 
only  as  an  intention  not  to  disturb  what  already  exists  ;  and  as,  at  the 
time  of  the  adoption  of  the  Constitution,  common  carriers,  under  the 


SKCT.    III.]      MUEEAY  V.   CHICAGO  &  ^OKTHWESTKKX  RAILWAY  CO.     107 

principles  of  the  common  law,  were  subject  to  certain  duties  and  obliga- 
tions, the  failure  on  the  part  of  Congress  to  legislate  thereon  evinces 
the  legislative  intent  to  leave  the  rules  and  principles  of  the  common 
law  in  full  force,  as  controlling  and  defining  the  relations,  duties,  and 
obligations  of  common  carriers  engaged  in  interstate  commerce." 

It  will  be  further  noticed  that  it  is  suggested  in  the  opinion  that  it 
might  be  implied  that  Congress  has  supplied  a  law  or  rule  governing 
foreign  and  interstate  commerce.  Is  there  not  as  good  ground  to  be 
found  in  the  provisions  of  the  Constitution,  and  the  statutes  based 
thereon,  for  implying  the  recognition  of  the  principles  of  the  common 
law,  as  there  is  for  implying  the  recognition  of  the  law  of  nations,  or 
the  maritime  law  as  applied  to  foreign  commerce?  Suppose  a  mer- 
chant or  manufacturer  residing  in  the  United  States  makes  a  shipment 
of  goods  b}'  land  into  the  dominion  of  Canada,  and  another  shipment 
of  goods  to  England  by  sea,  in  both  instances  the  goods  being  delivered 
to  common  carriers  for  transportation  and  delivery  ;  would  not  the 
duty  and  obligations  resting  upon  the  steamship  line  to  which  the 
goods  destined  for  England  were  delivered  be  measured  by  the  law 
maritime  ?  What  express  provision  of  the  Constitution  or  of  the  stat- 
utes of  the  United  States  declares  that  shipowners  engaged  in  foreign 
commerce  are  subject  to  the  law  maritime?  Has  Congress  ever 
adoi)ted  a  code  of  laws  declaring  wliat  the  rules  and  principles  are  that 
are  applicable  to  foreign  commerce  carried  on  over  the  high  seas  or 
the  navigable  waters  of  the  countr}'?  It  has  adopted  specific  provi- 
sions modifying  the  general  principles  of  the  law,  but  it  has  alwa^-s 
recognized  the  existence  of  the  general  system.  Can  it  be  contended 
that,  in  the  absence  of  legislation  by  Congress  expressl}-  adopting  the 
law  maritime,  foreign  shipments  upon  the  ocean  are  without  legal 
protection  ;  that,  from  the  acceptance  of  the  goods  for  transportation 
and  deliver}-,  no  implied  contract  is  created ;  that  the  respective  rights 
and  duties  of  the  parties  are  such,  and  such  only,  as  may  be  created 
by  express  contract  between  the  parties?  Even  if  an  express  contract 
is  entered  into,  by  what  rules  and  i)rinciples  are  its  provisions  to  be 
construed?  That  the  law  maritime  has  been  in  force,  and  is  now  in 
force,  in  the  United  States,  cannot  be  questioned  ;  and  yet  it  was  not 
created  or  expressly  enacted  in  the  Constitution  or  an}'  act  of  Congress. 
That  system  of  law  was  in  existence  when  the  Constitution  was 
adopted,  and  its  existence  is  recognized  in  the  Constitution,  and  i)ro- 
vision  is  made  for  enforcing  the  same  by  conferring  admiralty-  jurisdic- 
tion upon  the  courts  of  the  United  States.  From  this  the  inference,  and 
tlie  onlv  inference,  is  that  it  v.'as  not  the  intent  of  Uw.  (-'onstitution  to 
abrogate  the  then  existing  inaritinic  law,  l)ut,  r(!cognizing  its  existence, 
to  provide  for  its  enforcement  in  all  matters  to  whicth  it  is  applicable, 
itutliiding  foreign  commerce.  There  i-;  no  doiilit,  tiiercdbre,  that,  as  to 
tliat  part  of  foreign  commerce  which  is  cuiried  on  tlirougli  the  agency 
of  common  carriers  upon  navigable^  waters,  tliere  is  a  system  of  law 
ui)l)licable  thereto,  and  coints  having  jiuisdiction  to  enforce  tiie  prin* 


108      MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.     [CHAP.    I 

ciples  of  the  system.  How  is  it,  in  regard  to  that  part  of  foreign  com- 
merce carried  on  with  neighboring  countries,  where  the  transportation 
is  b}-  land,  as  in  the  case  supposed  of  a  shipment  of  goods  to  Canada? 
It  is  said  that  the  common  carrier  engaged  in  foreign  commerce  cannot 
be  held  subject  to  the  principles  of  the  common  law,  because  Congress 
has  not  expressly  adopted  the  common  law,  and  therefore  it  cannot  be 
applied  to  shipments  made  to  foreign  countries.  Is  not  the  existence 
of  the  common  law  as  fully  recognized  in  the  Constitution,  and  the 
laws  of  Congress  based  thereon,  as  is  the  existence  of  tlie  law  mari- 
time? Do  not  the  Constitution  and  the  judiciary  act  confer  upon  the 
courts  of  the  United  States  full  common-law  jurisdiction?  Are  not  the 
courts  of  the  United  States,  therefore,  authorized  to  enforce  the  prin- 
ciples of  the  law  maritime  and  the  common  law  in  all  cases  to  which 
they  are  applicable,  and  which  are  within  the  jurisdiction  of  the  federal 
courts?  Suppose  a  shipment  of  goods  is  made  from  San  Francisco, 
through  New  York,  to  England.  The  carrier  receives  the  goods  to  be 
sent  by  land  to  New  York,  and  thence  by  ship  to  England.  No  spe- 
cial contract  is  made.  This  shipment  is  a  matter  of  foreign  commerce. 
When  placed  on  shipboard  at  New  York  for  transportation  to  England, 
is  there  any  doubt  that  the  law  maritime  is  applicable  thereto,  and 
that,  if  litigation  should  arise  regarding  the  ocean  transportation,  the 
courts  of  the  United  States  would  apply  the  principles  of  the  law  mari- 
time thereto?  If  litigation  with  the  common  carrier  should  arise 
touching  the  land  transportation,  would  not  tiie  courts  of  the  United 
States  have  the  right  to  apply  the  principles  of  the  common  law 
thereto?  Upon  what  fair  principle  of  construction  can  it  be  held  that 
the  Constitution  so  far  recognizes  the  law  maritime  that  it  must  be 
held  to  be  in  force,  but  that  the  recognition  of  the  common  law  is  not 
sufficient  to  keep  it  in  force  in  matters  of  national  concern? 

In  Swift  V.  Railroad  Co.,  58  Fed.  858. — a  case  decided  by  the 
United  States  Circuit  Court  for  the  Northern  District  of  Illinois,  — 
it  is  held  that  the  law  of  the  State  of  Illinois  could  not  be  applied 
to  contracts  for  shipments  of  property  into  other  States  ;  that  inter- 
state commerce  cannot  be  controlled  by  the  local  law  of  the  State, 
either  statutory  or  common  ;  that,  previous  to  the  enactment  of  the 
Interstate  Commerce  Act  l)y  Congress,  there  was  no  act  of  Congress 
reo-ulating  interstate  commerce ;  that  tiie  United  States  had  never 
adopted  the  common  law  ;  that,  previous  to  the  adoption  of  the  Inter- 
state Commerce  Act  in  1887,  there  was  therefore  no  law  controlling  the 
relations  of  carriers  and  shippers  in  regard  to  interstate  commerce. 
If  it  be  true  that  the  principles  of  the  common  law  are  not  in  force  in 
this  countrv  in  regard  to  such  matters  as  are  placed  under  national  con- 
trol, then  it  is  difficult  to  escape  the  conclusions  reached  by  Judge 
Grosscup  in  the  case  just  cited  ;  but  I  cannot  concur  in  the  proposition 
that  the  principles  of  the  common  law  have  no  existence  in  this  countr}' 
as  applicable  to  national  affairs,  or  that  these  principles  have  only  a 
local   existence,   due  to  their  adoption  by  the  several  States.     It  is 


SECT.  III.]      MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO. 


109 


certainly  a  novel  proposition  that  up  to  the  date  of  the  enactment  of 
the  Interstate  Commerce  Act,  in  1887,  all  the  foreign  and  interstate 
commerce  of  the  country  was  without  the  pale  of  law,  and  that  there 
were  no  legal  rules  or  principles  which  governed  or  controlled  the 
relations  between  the  shippers  or  carriers  engaged  in  that  business ; 
and  yet  such  seems  to  be  the  conclusion  in  Swift  v.  Railroad  Co.  In 
Railway  Co.  v.  Osborne,  3  C.  C.  A.  347,  52  Fed.  912,  —a  case  involv- 
ing the  construction  of  the  Interstate  Commerce  Act,  — Mr.  Justice 
Brewer,  speaking  for  the  court,  held  :  "  It  was  the  first  effort  of  the 
general  government  to  regulate  the  great  transportation  business  of  the 
country.  That  business,  though  of  a  quasi  public  nature,  and  there- 
fore subject  to  a  governmental  regulation,  has,  as  a  matter  of  fact,  been 
carried  on  by  private  capital  through  corporations.  The  fact  that  it 
was  a  public  business  always  prevented  the  owners  of  capital  invested 
in  it  from  charging,  like  owners  of  other  property,  any  price  they  saw 
fit  for  its  use.  A  reasonable  compensation  was  all  they  could  exact, 
and  he  who  felt  aggrieved  by  a  charge  could  always  invoke  the  aid  of 
the  courts  to  protect  himself  against  it." 

Mr.  Justice  Brewer  is  here  speaking  of  the  condition  of  affairs  before 
the  enactment  of  the  Interstate  Commerce  Act,  and  he  expressly  declares 
that,  prior  to  that  act,  common  carriers  engaged  in  interstate  commerce 
were  bound  to  charge  only  a  reasonable  compensation,  or,  in  other 
words,  they  were  subject  to  the  principles  of  the  common  law. 

It  is  further  argued  that  it  has  been  repeatedly  decided  that  the 
inaction  of  Congress,  up  to  1887,  in  passing  any  law  regarding  inter- 
state commerce,  shows  that  the  intent  was  to  leave  such  commerce  free 
from  all  restraint,  and  therefore  common  carriers  assumed  no  common- 
law  liability  in  undertaking  shipments  of  goods  from  one  State  to 
another.  The  decisions  of  the  Supreme  Court  in  the  numerous  casec 
involving  the  validity  of  State  laws  affecting  foreign  and  interstate 
commerce  have  always  held  tliat  the  inaction  of  Congress  could  not  be 
construed  to  mean  that  the  States  were  at  liberty  to  legislate  in  regard 
to  these  subjects  in  the  absence  of  congressional  legislation,  but  that 
such  inaction  evidenced  that  it  was  the  intent  of  Congress  to  leave 
commerce,  foreign  and  interstate,  free  from  all  legislative  restrictions. 
It  has  never  been  lield.  however,  that  the  freedom  of  commerce  meant 
that  those  engaged  in  carrying  it  on  were  not  under  legal  restraints 
and  obligations  growing  out  of  the  relations  of  carriers  and  shippers. 
If  the  theory  now  contended  for  by  the  defendant  company  be  correct, 
then  from  the  foundation  of  the  government  up  to  April  4,  1887,  when 
the  Interstate  Commerce  Act  took  effect,  it  was  open  to  all  the  common 
carriers  engaged  in  foreign  or  interstate  commerce  to  act  as  they  pleased 
in  regard  to  accepting  or  refusing  freights,  in  regard  to  the  prices  they 
might  diarge,  in  regard  to  the  care  they  should  exercise,  and  the  speed 
with  which  they  should  transport  and  deliver  the  property  placed  in 
their  charge.  What  more  disastrous  restraint  upon  the  true  freedom 
of  foreign  and  interstate  commerce  could  be  devised  than  the  adoption 


110       MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.       [CHAP.  I. 

of  the  doctrine  that  the  inaction  of  Congress  left  the  can-iers  engaged 
therein  entirely  free  to  accept  and  transport  the  property  of  one  man 
or  corporation,  and  to  refuse  to  accept  the  like  property  of  another,  or 
to  transport  the  products  of  one  locality,  and  to  refuse  to  transport 
those  of  another ;  to  charge  an  onerous  toll  upon  the  property  of  one, 
and  carry  that  of  his  neighbor  for  nothing?  Can  it  be  possible  that 
the  transcontinental  railwaj's  and  other  federal  corporations  engaged  in 
foreign  and  interstate  commerce,  in  the  absence  of  congressional  legis- 
lation, were  not  under  anj'  legal  restraints,  and  that  the  citizen,  in  his 
dealings  with  them,  was  without  legal  remed}' or  protection?  In  the 
absence  of  congressional  legislation,  what  law  could  be  applied  to 
them,  with  regard  to  matters  under  the  exclusive  control  of  the 
national  government,  except  the  principles  of  the  common  law  or  the 
law  maritime?  I  cannot  yield  assent  to  the  broad  proposition  that,  as 
to  those  subjects  over  which  Congress  is  given  exclusive  legislative  con- 
trol, there  is  no  law  in  existence  if  Congress  has  not  expressl}'  legis- 
lated in  regard  thereto.  The  true  doctrine,  in  mj'  judgment,  is  that 
the  Constitution  of  the  United  States,  when  it  was  adopted,  gave  full 
recognition  to  the  existing  systems  of  the  law  of  nations,  of  admiralty 
and  maritime,  of  the  common  law,  and  equit}-.  It  apportioned  to  the 
national  government,  then  created,  control  over  certain  subjects, 
exclusive  as  to  some,  concurrent  as  to  others.  This  apportionment  of 
control  over  certain  subjects  necessitated  the  exercise  of  both  legisla- 
tive and  judicial  powers,  and  provision  was  made  for  the  former  in  the 
creation  of  Congress,  and  for  the  latter  in  the  creation  of  the  Supreme 
Court,  and  bj-  conferring  authority  on  Congress  to  create  other  courts. 
The  courts  thus  created  were  vested  with  jurisdiction  in  admiralty  and 
at  common  law  and  in  equit}'.  If  there  is  no  common-law  jurisdiction 
to  be  exercised,  and  no  common-law  principles  to  be  enforced,  why 
create  courts  for  that  purpose?  But  it  is  said  in  Swift  v.  Railroad  Co., 
and  the  same  thought  is  found  in  other  cases,  that  "  the  courts  of  the 
United  States  have  had  many  occasions  to  enforce  the  common  law,  but 
in  every  instance  it  has  been  as  the  municipal  law  of  the  State  by  which 
the  subject-matter  was  affected."  This  may  be  generally,  but  it  is  not 
universally,  true.  In  Mississippi  Mills  v.  Cohn,  150  U.  S.  202,  we 
find  a  case  which  was  originally  brought  in  a  court  of  the  State  of 
Louisiana,  in  which  State  the  civil,  and  not  the  common,  law  is  in  force. 
The  suit  was  removed  into  the  United  States  Circuit  Court,  and  was  by 
that  court  dismissed  for  want  of  jurisdiction,  upon  the  ground  that, 
being  a  suit  in  equity,  it  could  not  be  maintained,  because  the  remed}' 
at  law  was  sufficient.  The  Supreme  Court  reversed  the  ruling,  holding 
that  even  if,  under  the  law  of  the  State  of  Louisiana,  —  that  is,  the 
civil  law,  —  the  remedj'  at  law  was  suflScient,  yet  that  fact  would  not 
defeat  the  jurisdiction  in  equit}'  of  the  federal  court,  for  the  reason 
"  that  the  inquiry,  rather,  is  whether,  by  the  principles  of  common  law 
and  equity,  as  distinguished  and  defined  in  this  and  the  mother  country 
at  the  time  of  the  adoi)tion  of  the  Constitution  of  the  United  States, 


SECT.  III.]      MUER.n'  V.  CHICAGO  &,  NORTHWESTERN  RAILWAY  CO.     Ill 

the  relief  bere  soiiglit  was  one  obtainable  in  a  court  of  law,  or  one 
which  onh-  a  court  of  equity  was  fully  conipetLMit  to  give."  In  this 
ruling  the  Supreme  Court  was  certainly  not  enforcing  the  municipal  law 
of  the  State  of  Louisiana.  If  courts  of  the  United  States  can  onh* 
recognize  and  enforce  the  principles  of  the  common  law  when  the  same 
form  part  of  the  municipal  law  of  the  State,  how  conies  it  that  the 
Supreme  Court  directed  the  Circuit  Court  in  Louisiana  to  apply  the 
principles  of  the  common  law  and  of  equity,  as  the}'  existed  when 
the  Constitution  was  adopted,  to  the  decision  of  the  question  of  jurisdic- 
tion arising  in  that  case?  Suppose  a  State  should  enact  that  all  ques- 
tions of  title  to  realty  should  be  triable  only  in  a  Court  of  Equity,  and  in 
accordance  with  the  principles  of  equity  ;  would  that  enactment  confer 
upon  the  courts  of  the  United  States  the  same  jurisdiction,  and  thus 
permit  a  question  of  strict  legal  title  to  be  tried  in  equity  in  the  courts 
of  the  United  States,  if,  according  to  the  principles  of  the  common 
law  in  force  when  the  Constitution  was  adopted,  an  action  in  ejectment 
would  afford  an  ample  remedy?  Clearly,  the  federal  court  could  in 
such  case  entertain  only  the  common-law  action,  and  in  so  doing  it 
would  be  acting  under  and  enforcing  the  principles  of  the  common  law, 
not  the  municipal  law  of  the  State,  for  it  would  be  disregarding  that, 
but  the  common  law  brought  b}'  our  ancestors  from  the  mother  countr}'. 

Perhaps  the  most  forcible  illustration  of  the  fact  that  the  government 
of  the  United  States  does  recognize  and  enforce  the  principles  of  the 
common  law  with  regard  to  subjects  wholly  within  national  control,  and 
not  as  part  of  the  municipal  law  of  any  State,  is  found  in  connection 
with  the  organization  and  proceedings  of  the  Court  of  Claims.  This 
court  is  not  a  court  in  and  for  the  District  of  Columbia,  nor  is  it  a  court 
of  any  district  or  circuit.  It  has  jurisdiction  over  cases  arising  in  any 
of  the  .States  or  Territories.  It  has  jurisdiction  to  hear  and  determine 
cases  against  the  United  States.  Of  all  tlie  courts  in  the  Union,  it  is 
the  one  dealing  with  matters  of  national  concern,  arising  under  the 
Constitution  and  laws  of  the  United  States,  and  not  under  the  local  law 
of  the  several  States.  The  form  of  procedure  is  statutory,  supple- 
mented by  rules  of  its  own  adoption.  As  to  this  court  thus  organized, 
and  clothed  with  a  jurisdiction  wholly  national  in  its  character,  the 
express  ruling  of  the  Supreme  Court  is  to  the  effect  that  the  general 
law  controlling  its  action  is  the  common  law.  To  repeat  a  quotation 
already  made  from  the  opinion  of  the  Supreme  Court  in  Moore  v.  U.  S., 
91  U.  S.  270,  in  regard  to  the  Court  of  Claims:  "  In  our  opinion,  it 
must  be  governed  by  law  ;  and  we  know  of  no  system  of  law  by  which 
it  should  be  governed  other  than  the  common  law.  .  .  .  The  great 
majority  of  contracts  and  transactions  which  come  before  the  Court  of 
Claims  for  adjudication  are  permeated  and  are  to  be  adjudged  by  the 
principles  of  the  common  law." 

To  the  same  effect  is  the  ruling  in  U.  S.  v.  Clark,  96  U.  S.  37,  and 
there  are  no  decisions  to  the  contrary.  There  is  no  act  of  Congress 
which  adopts  the  common  law  as  the  rule  of  action  for  the  Court  of 


112       MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      [CHAP.    I. 

Claims.  The  reasons  which  declare  the  common  law  to  be  the  s^vstem 
governing  its  action  apply  equally  to  the  other  courts  of  the  United 
States.  B\'  the  provisions  of  the  Act  of  Congress  of  March  3,  1887, 
concurrent  jurisdiction  with  the  Court  of  Claims  is  conferred  upon  the 
District  and  Circuit  Courts  of  the  United  States.  Many  of  the  claims 
against  the  United  States  arise  out  of  implied  contracts  ;  that  is,  the 
facts  are  such  that,  according  to  the  principles  of  the  common  law,  an 
obligation  to  pay  for  the  use  of  property  is  implied,  in  the  absence  of 
an  express  contract.  Thus,  in  U.  S.  v.  Palmer,  128  U.  S.  262,  the 
judgment  of  the  Court  of  Claims  awarding  to  Palmer  the  sum  of 
$2,256.75  as  a  reasonable  compensation  for  the  use,  by  the  govern- 
ment, of  certain  patented  military  equipments,  was  sustained  by  the 
Supreme  Court,  it  being  said  that  "  we  think  an  implied  contract  for 
compensation  fairly  arose  under  the  license  to  use,  and  the  actual  use, 
little  or  much,  that  ensued  thereon."  In  this  case  there  was  no  express 
agreement  for  compensation  nor  for  the  amount  thereof  Applying 
the  principles  of  the  common  law  to  the  facts,  the  Coui't  of  Claims  held 
that  the  law  would  impl}-  a  contract  to  pa3'  a  reasonable  compensation, 
and  the  Supreme  Court  affirmed  the  judgment.  Had  Palmer  brought 
the  suit  in  a  Circuit  Court  of  the  United  States  instead  of  in  the  Court 
of  Claims,  is  it  possible  he  would  have  been  defeated  on  the  ground 
that  the  local  law  of  the  State  did  not  apply,  and  that  the  common  law 
could  not  be  invoked  in  a  Circuit  Court  of  the  United  States,  and 
therefore  there  was  no  law  applicable  to  the  situation  in  the  absence  of 
an  express  contract?  The  right  of  recovery  in  sut-li  cases  is  not  de- 
pendent upon  the  court  in  which  the  action  may  be  brought,  but  upon 
the  question  of  the  principles  of  law  —  that  is,  the  system  of  law  — 
which  are  applicable  to  the  situation,  and  which  define  the  rights  and 
obligations  of  the  parties.  Under  the  principles  of  the  common  law, 
as  the  same  existed  at  the  time  of  the  separation  between  the  colonies 
and  Great  Britain,  common  carriers  of  goods  assumed  certain  duties 
and  obligations  to  their  patrons.  The  adoption  of  the  Constitution  of 
the  United  States  certainly  did  not  change  the  relation  existing  be- 
tween the  carrier  and  the  public,  nor  in  any  way  affect  the  obligations 
assumed  by  the  carrier.  The  Constitution  conferred  legislative  control 
over  foreign  and  interstate  commerce  upon  Congress,  reserving  to  the 
several  States  legislative  control  over  intrastate  commerce.  This 
division  of  legislative  control  did  not,  however,  abrogate  the  common- 
law  principle  then  in  force.  Thus,  in  Boyce  /•.  Anderson,  2  Pet.  150, 
the  question  presented  was  whether  the  strict  rule  of  the  common  law 
in  regard  to  liability  for  goods  lost  could  be  applied  in  the  case  of 
slaves  ;  and  it  was  held  that  it  would  not  be  applied,  as  slaves  were 
human  beings  having  a  volition  of  their  own  ;  but  it  was  held  that 
"  the  ancient  rule  that  the  carrier  is  liable  only  for  ordinary  neglect 
still  applies  to  them."  In  determining  the  rights  of  the  parties  in  this 
case,  the  Supreme  Court,  speaking  by  Marshall,  C.  J.,  relied  upon  the 
common  law  for  its  guidance.     In  Bank  of  Kentucky  v.  Adams  Exp. 


SECT    III.]      MURRAY  V.  CHICAGO  &  NORTHWESTERN  HAILWAY  CO.      113 

Co.,  93  U.  8.  174,  the  question  arose  as  to  the  liability  of  the  express 
company  for  certain  packages  of  money  sent  from  New  Orleans,  La. , 
to  Louisville,  Ky.,  and  which  were  destroyed  by  fire  while  in  transit, 
the  bills  of  lading  containing  stipulations  in  respect  to  the  liability  of 
the  company.  It  will  be  noticed  that  the  shipment  was  from  one  State 
to  another,  and  therefore  was  of  the  nature  of  interstate  commerce. 
In  the  course  of  the  opinion  it  is  said  :  "  We  have  already  remarked 
that  the  defendants  were  common  carriers.  .  .  .  Having  taken  up  the 
occupation,  its  fixed  legal  character  could  not  be  thrown  off  by  any 
declaration  or  stipulation  that  they  should  not  be  considered  such  car- 
riers. The  duty  of  a  common  carrier  is  to  transport  and  deliver  safely. 
He  is  made,  b}-  law,  an  insurer  against  all  failure  to  perform  this  duty, 
except  such  failure  as  may  be  caused  by  the  public  enemy,  or  by  what 
is  denominated  the  '  act  of  God.'  .  .  .  The  exception  or  restriction  to 
the  common-law  liability  introduced  into  the  bills  of  lading  given  by 
the  defendants.  .   .  ." 

Thus  we  have  the  express  declaration  that  a  common  carrier  engaged 
in  interstate  commerce  is  subject  to  the  common-law  liability  pertain- 
ing to  his  occupation.  Many  other  cases  of  like  import  are  to  be  found 
in  the  Supreme  Court  Reports,  in  which  it  is  assumed  that  the  princi- 
ples of  the  common  law  are  ajjplicable  to  common  carriers  engaged  in 
foreign  or  interstate  commerce  ;  and  I  can  see  no  good  reason  for  hold- 
ing that  the  duties  and  obligations  imposed  upon  a  common  carrier  by 
the  common  law  are  not  operative  when  he  undertakes  the  transporta- 
tion of  property  from  State  to  State.  It  is  said  in  argument  that  the 
obligations  imposed  upon  common  carriers  are  largely  based  upon  con- 
siderations of  public  policy  ;  that  each  State  determines  for  itself  what 
its  public  policy  demands  ;  and  that  the  courts  of  the  United  States 
can  recognize  and  enforce  only  the  public  policy  of  the  State.  There 
is  a  public  policy  of  the  nation  as  well  as  that  of  the  several  States. 
As  to  all  such  matters  as  are  reserved  to  the  States,  and  are  therefore 
without  the  plane  of  national  control,  it  may  well  be  that  it  is  for  each 
State  to  determine  what  public  policy  dictates  with  regard  thereto. 
The  rule  of  the  common  law  is  that  no  one  can  lawfully  do  that  which 
is  injurious  to  the  public,  or  which  conflicts  with  the  prevailing  senti- 
ment or  interest  of  the  community.  In  determining  whether  a  given 
act  or  course  of  conduct  is  injurious  to  the  public  interests,  regard 
must  be  had  to  the  ciicuinstances.  That  which  the  public  interests 
may  demand  in  one  locality  may  not  be  suited  to  the  interests  of  an- 
other locality.  There  are  many  matters  of  a  local  nature  which  it  is  for 
eacii  State  to  regulate  and  contrf)l  for  itself,  either  l)y  legislation,  or 
by  judicial  declarations  of  the  results  derivable  from  the  api)lication  of 
common-law  principles  to  the  existing  surroundings.  On  the  other 
hand,  there  are  many  matters  which  affect  the  entire  country,  which 
are  therefore  of  national  importance,  and  which  must  be  dealt  with 
accordiiiglv.  In  deciding  legal  questions  arising  out  of  the  latter  class 
of  cases,  courts  are  not  confined  to  the   in(iiiiry   wiielher  llic  particular 


114        MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      [CHAP,    I. 

State  in  which  the  court  may  be  sitting,  has  an  established  public 
polic\'  touching  the  subject-matter,  but  they  will  apply  the  recognized 
principles  of  general  jurisprudence,  to  wit,  the  principles  of  the  com- 
mon law^  or  of  the  law  of  nations,  or  of  tlie  law  maritime,  as  the  nature 
of  the  particular  case  may  demand.  Thus,  in  Oscanyan  v.  Arms  Co., 
103  U.  S.  261,  the  Supreme  Court  held  that  a  contract  entered  into 
between  a  consul  general  of  the  Ottoman  government  residing  at  New 
York,  and  a  company  engaged  in  supplying  arms,  whereby-  the  former 
was  to  be  paid  a  commission  upon  all  contracts  secured  through  his 
aid  was  void,  even  though  it  might  be  valid  in  Turkey,  it  being  said : 
"  But  admitting  this  to  be  otherwise,  and  that  the  Turkish  government 
was  willing  that  its  officers  should  take  commissions  on  contracts  ob- 
tained for  it  by  their  influence,  that  is  no  reason  wh}-  the  courts  of  the 
United  States  should  enforce  them.  Contracts  permissible  by  other 
countries  are  not  enforceable  in  our  country  if  they  contravene  our 
laws,  our  morality,   or  our  policy." 

The  variety  of  cases  in  which  this  doctrine  is  applied  may  be  seen 
by  reference  to  Marshall  v.  Railroad  Co.,  16  How.  314;  Tool  Co.  v. 
Norris,  2  Wall.  45  ;  Trist  v.  Child,  21  Wall.  441  ;  Meguire  ?'.  Corwine, 
101  U.  S.  108  ;  Texas  v.  White,  7  Wall.  700  ;  Hanauer  v.  Doane,  12 
Wall.  342 ;  Thomas  v.  City  of  Richmond,  id.  349  ;  Woodstock  Iron 
Co.  V.  Richmond  &  D.  Extension  Co.,  129  U.  S.  643.  In  these  cases, 
and  others  of  similar  import,  the  Supreme  Court  does  not  base  the 
rulings  upon  the  local  law  of  an}'  State,  for  in  the  majority  of  the  cases 
the  question  arose  in  connection  with  matters  outside  the  plane  of 
State  control.  Thus,  in  Trist  v.  Child,  supra,  a  bill  in  equity  was  filed 
to  enforce  an  agreement  for  services  rendered  in  getting  through  Con- 
gress a  bill  for  payment  to  Trist  of  a  remuneration  for  his  services  to 
the  United  States  in  negotiating  the  treat}'  of  Guadalupe  Hidalgo  with 
Mexico.  Mr.  Justice  Swayne,  speaking  for  the  court,  declared  that : 
"  It  is  a  rule  of  the  common  law,  of  universal  application,  that  where  a 
contract,  express  or  implied,  is  tainted  with  either  of  the  vices  last 
named  as  to  the  consideration  on  the  thing  done,  no  alleged  right 
founded  upon  it  can  be  enforced  in  a  court  of  justice." 

Applying  this  rule  of  the  common  law  to  the  facts  of  the  case,  the 
agreement  sought  to  be  enforced  was  held  void. 

The  conclusion  I  reach  upon  this  subject  is  that  at  the  time  of  the 
separation  of  the  colonies  from  the  motlier  country,  and  at  the  time  of 
the  adoption  of  the  Constitution,  there  was  in  existence  a  common 
law,  derived  from  the  common  law  of  England,  and  modified  to  suit 
the  surroundings  of  the  people  ;  that  the  adoption  of  the  Constitution 
and  consequent  creation  of  the  national  government  did  not  abrogate 
this  common  law;  that  the  division  of  governmental  powers  and  duties 
between  tlie  national  and  State  governments  provided  for  in  the  Con- 
stitution did  not  deprive  the  people  who  formed  the  Constitution  of  the 
benefits  of  the  common  law;  that,  as  to  such  matters  as  were  by  the 
Constitution  committed  to   tlie   control  of  the  national  government. 


SECT.    III.]     MURRAY  V.  CHICAGO  &  NORTHWESTERN  RAILWAY  CO.      115 

there  were  applicable  thereto  the  law  of  nations,  the  maritime  law,  the 
principles  of  equity,  and  the  common  law,  according  to  the  nature  of 
the  particular  matter  ;  that,  to  secure  the  enforcement  of  these  several 
systems  when  applicable,  the  Constitution  and  Congress,  acting  in  fur- 
therance of  its  provisions,  have  created  the  Supreme  Court  of  tlie 
United  States  and  the  other  courts  inferior  thereto,  and  have  conferred 
upon  these  courts  the  right  and  power  to  enforce  the  principles  of  the 
law  of  nations,  of  the  law  maritime,  of  the  system  of  equity,  and  of  the 
common  law  in  all  cases  coming  within  the  jurisdiction  of  the  federal 
courts,  applying,  in  each  instance,  the  system  which  the  nature  of  the 
case  demands  ;  that,  as  to  all  matters  of  national  importance  over 
which  paramount  legislative  control  is  conferred  upon  Congress,  the 
courts  of  the  United  States  (the  Supreme  Court  being  the  final  arbiter) 
have  the  right  to  declare  what  are  the  rules  deducible  from  the  princi- 
ples of  general  jurisprudence  which  control  the  given  case,  and  to 
define  the  duties  and  obligations  of  the  parties  thereto  ;  that  the  com- 
mon law  now  applicable  to  matters  committed  to  the  control  of  the 
national  government  is  based  upon  the  common  law  of  England,  as 
modified  by  the  surroundings  of  the  colonists,  and  as  developed  bv  the 
growth  of  our  institutions  since  the  adoption  of  the  Constitution,  and 
the  changes  in  the  l)usiness  habits  and  methods  of  our  people  ;  that 
the  binding  force  of  the  principles  of  this  common  law,  as  applied  to 
matters  affecting  the  entire  people,  and  jjlaced  under  the  control  of 
the  national  government,  is  not  derived  from  the  action  of  the  States, 
and  is  no  more  subject  to  abrogation  or  modilicalion  l\y  State  legisla- 
tion than  are  the  principles  of  the  law  of  nations  or  of  the  law  mari- 
time. The  transactions  out  of  which  the  present  controvers}'  arises 
pertain  to  interstate  commerce.  The  defendant  compan}-,  when  en- 
gaged in  transporting  the  grain  and  cattle  of  plaintiff  from  Iowa  to 
Chicago,  111.,  was  acting  as  a  common  carrier  of  property,  and  as- 
sumed all  the  duties  and  obligations  pertaining  to  that  occupation. 
In  determining  the  obligations  assumed  by  a  common  carrier  engaged 
in  interstate  commerce,  the  cotnt  has  the  right  to  apply  the  rules  of 
the  common  law,  unless  the  same  have  been  changed  by  comi)eteiit 
legislative  action,  and  therefore,  in  the  present  case,  all  shipments  made 
before  the  adoption  of  the  Interstate  Commerce  Act  are  governed  by 
the  common  law,  and  those  made  since  the  adoption  of  that  act  by 
the  common  law  as  modified  ])y  that  act.^  .  .  . 

^  The  reiuainder  of  the  opinion,  upon  another  point,  is  omitted.  — Ei). 


116       SWIFT   V.    PHILADELPHIA   &   HEADING   RAILROAD    CO.      [CHAP.    L 


SWIFT  V.  PHILADELPHIA  &  READING  RAILROAD  CO. 

Circuit  Court  of  the  United  States,  N.  Dist.  Illinois.     1894. 

[Reported  64  Federal  Reporter,  59.] 

Grosscup,  J.  This,  with  other  cases  involving  the  same  questions, 
now  comes  on,  upon  motion  of  the  defendant,  for  leave  to  withdraw 
pleas,  and  file  demurrers  to  the  declaration.  The  disposition  of  the 
motion  is  dependent  upon  whether  the  declaration  sets  out  a  good 
cause  of  action,  and  is  practicall}-,  therefore,  a  demurrer  to  the 
declaration.  The  declaration  differs  in  some  respects  from  its  pred- 
ecessor, but,  before  entering  upon  the  effect  of  this  difference,  I  pro- 
pose to  revert  to  the  original  questions  discussed  in  my  former  opinion. 
Swift  V.  Railroad  Co.,  58  Fed.  858.  I  do  this  because  the  conclusions 
of  that  opinion  have  been  persistently  and  ably  combated,  not  only  in 
current  legal  periodicals,  but  also  by  some  of  the  courts  of  the  other 
circuits. 

The  conclusions  to  which  I  arrived  in  the  former  opinion  may  be 
summarized  as  follows:  The  right  to  recover  from  common  carriers 
for  unreasonable  exactions  must  be  found  in  some  positive  law  of  the 
land,  applicable  to  the  case  in  hand.  Such  a  prohibition  is  in  fact 
found  in  the  common  law  ;  but  it  is  not  applicable  to  the  case  in  hand, 
unless  there  be  a  common  law  of  the  United  States,  as  a  distinct  sov- 
ereignt}',  because  the  regulation  of  the  rates  upon  which  the  suit  is 
dependent  is  within  the  scope  of  interstate  commerce,  and  an  exclu- 
sively national  affair,  in  which  the  need  of  uniformity  is  imperative. 
There  is  no  common  law  of  the  United  States,  as  a  distinct  sovereignty  ; 
and  there  being  no  pronouncement  of  Congress  upon  this  subject, 
either  expressly  or  impliedl}',  outside  of  the  Interstate  Commerce  Act, 
and  this  action  not  having  been  brought  under  the  Interstate  Commerce 
Act,  there  is  no  law,  either  of  the  United  States  or  the  State,  applica- 
ble to  the  case  in  hand,  and  there  can  therefore  be  no  recovery. 

The  only  link  in  the  foregoing  summary  that  has  met  with  serious 
objection  is  the  one  wliicli  affirms  the  non-existence  of  a  United  States 
common  law.  Indeed,  it  is  conceded  that  unless  a  prohibition  against 
the  exaction  of  unreasonable  rates  is  to  be  found  in  the  body  of  the 
laws  in  force  in  the  United  States,  outside  of  the  scope  of  State  juris- 
prudence, an  action  such  as  this  cannot  be  sustained  in  the  courts,  either 
of  the  United  States  or  the  States,  for,  confessedly,  the  right  to  sustain 
them  in  the  courts  of  the  States  is  predicated  upon  the  jurisdiction  of 
State  courts,  in  most  instances,  to  enforce  personal  rights  growing  out 
of  United  States  law.  In  my  former  opinion,  I  assumed  that  there 
was  no  common  law  of  the  United  States,  basing  that  assumption  upon 
the  repeated  declarations  of  the  Supreme  Court.  These  declarations, 
I  confess,  were  not  decisive  of  the  particular  cases  in  which  they 
occurred,  and  have  not   been  accompanied  by  any  discussion  of  the 


SECT.    III.]     SWIFT    V.    PHILADELPHIA   &   READING    li.ULUOAD    CO.      117 

considerations  upon  which  they  are  foinided ;  but  throughout  the 
literature  of  that  tribunal  they  have  occurred  often  enough,  without 
even  the  suggestion  of  a  probable  controversy,  to  justify  their  accept- 
ance as  the  settled  pronouncement  of  the  court.  I  propose  now,  how- 
ever, to  consider  the  proposition  as  if  it  were  whollj'  original  and 
undecided. 

Assuming  that  the  regulation  of  freight  rates  upon  interstate  com- 
merce IS  exclusively  a  national  affair,  is  there  any  law  of  the  United 
States  applicable  to  the  case  in  liand,  except  such  as  may  be  found  to 
have  arisen  from  the  legislation  of  Congress?  Is  there  any  common- 
law  prohibition  against  unreasonable  rates?  Is  there  anj' United  States 
common  law  at  all?  This  inquiry  can  only  be  answered  by  taking  a 
rapid  glance  at  the  whole  sweep  of  our  dual  system  of  government,  and 
its  legal  settings  upon  the  jurisprudence  of  the  past. 

What  is  law?  In  the  sense  under  review,  it  is  a  rule  of  civil  conduct 
prescribed  b}-  the  supreme  power  in  the  State.  Mere  definitions  of 
riglit  and  wrong  are  not  necessarily  law.  They  may  be  so  manifestly 
just  that  they  ougiit  to  control  civil  conduct,  but  the  citizen  is  under 
no  legal  obligation  to  obey  them  unless  they  are  the  expressed  com- 
mand of  the  supreme  power  in  the  State.  A  rule  of  civil  conduct,  to 
have  the  force  of  law,  must  emanate  from  some  power  that  is  supreme 
in  the  field  to  which  the  rule  belongs.  When  we  would  know  what  the 
law  IS,  therefore,  we  must  inquire  always  from  what  power  it  i)roceeds, 
and  the  right  of  that  power  to  prescribe  it. 

No  one  doubts  the  existence  of  some  law  of  the  land  everywhere. 
No  plain  or  valley,  no  nook  or  corner,  to  wiiich  the  dominion  of  man 
has  extended  itself,  is  without  some  law  of  tlie  land.  Indeed,  law  is 
the  breath  of  dominion.  Its  commands  are  to  be  found  in  the  express 
enactments  of  the  sovereign  legislative  bodies,  in  the  body  of  our 
judicial  decrees,  and  in  those  ancient  systems  of  law  to  which  these 
later  emanations  are  only  supplementary.  The  last  named  were 
brought  to  the  shores  of  America  by  the  feet  of  the  early  emigrants ; 
by  the  P^nglislunen,  fhe  common  law;  and,  by  the  Frenclimen  and 
Spaniards,  the  civil  law.  Hacii  of  these,  — the  civil  and  tlie  common 
law,  —  within  the  respective  boundaries  into  which  they  have  settled, 
constitutes  the  fundamental  rules  of  civil  conduct ;  and  there  is  no  inch 
of  our  soil  in  which  one  of  them  is  not  in  force.  But,  as  we  have  seen, 
law  is  not  simply  a  rule  of  civil  conduct,  but  a  rule  prescribed  by  the 
supreme  power  in  the  Stat(!.  Now.  th<.'  supreme  power  of  the  State  is, 
with  us,  divided.  The  lin»!  of  division  is  not  territorial,  but  topical. 
Each  inch  of  soil  is  sultjcct  to  the  rule  of  two  powers  of  State,  over- 
lapping each  otiier  in  some  respects,  but  never  conflicting,  and  divided 
always  according  to  pr(;arrang('d  constitutional  adjustments.  In  some 
fields  the  nation  is  the  sole  power  to  prescribe  rules  of  conduct,  in  other 
fields  that  power  is  exclusively  in  the  State,  and  in  still  other  lields  it 
is  concurrent.  It  is  plain  that  in  the  first  of  these  fields  the  emanation 
of  a  rule  of  conduct  from  the  State,  as,  in  the  second,  a  like  emanation 


118      SWIFT   V.    PHILADELPHIA   &   READING   RAILROAD    CO.       [CHAP.   I. 

from  the  nation,  would  not  have  the  effect  of  law.  Neither,  in  the  field 
of  the  other,  is  a  power  in  the  State.  The  nation  has  not  the  power  to 
prescribe  rules  of  civil  conduct  within  the  field  exclusively  belonging 
to  the  State.  The  State  has  not  the  power  to  prescribe  rules  within  the 
fields  exclusively  belonging  to  the  nation.  From  each  of  these  two  fields, 
the  nation  and  the  State,  as  the  case  ma}'  be,  is  excluded  as  a  lawgiver. 
Now,  this  must  apply  as  well  to  the  system  of  law  to  which  the  sov- 
ereign succeeds  as  to  that  which  it  immediately  creates ;  to  the  com- 
mon or  civil  law  as  well  as  to  that  which  comes  from  its  own  legislative 
or  judicial  will.  In  other  words,  the  State  or  nation,  having  no  power 
to  give  law  in  the  fields  exclusively  belonging  to  tlie  other,  logicall}', 
can  have  succeeded  to  no  law  applicable  to  such  fields.  Neither  can 
have  a  common  law  or  a  civil  law  within  fields  to  which  it  can  extend 
no  law  at  all. 

But  the  contention  is  that,  the  lawgiving  powder  being  divided 
topically  between  State  and  nation  by  the  Constitution,  each  of  the 
participants  is  both  the  rightful  current  lawgiver,  and  the  rightful 
successor  to  the  common  law,  in  the  specific  field  apportioned  to  it; 
from  which  it  would  follow  that  the  common  law,  like  its  own  legis- 
lation, is  prescribed  by  the  State  as  a  rule  of  civil  conduct  within 
the  field  of  powers  belonging  to  the  State,  and  by  the  nation  within 
the  field  of  powers  belonging  to  the  nation.  In  other  words,  that  the 
common  law  or  civil  law,  as  the  case  may  be,  prevails  everywhere, 
and  on  every  subject,  but  the  source  of  the  command  is  national  or 
State  according  to  the  line  of  demarkatiou  between  the  fields  of 
power  of  the  nation  and  State.  This  premise  accepted,  it  would 
follow  that  the  natiou,  having  power  to  regulate  interstate  commerce, 
has  succeeded  within  that  field,  as  sovereign  and  lawgiver,  to  the 
commands  embodied  in  the  common  law%  and  that  within  that  field 
the  common  law,  attributable  to  the  nation,  as  sovereign,  is  in  force. 
The  error,  if  there  be  any,  is  in  the  assumption  of  the  premise.  It 
is  true  that  the  State  has,  by  succession  or  adoption,  prescribed  the 
common  law  to  its  citizens  upon  subjects  within  the  field  of  power  of 
the  State.  Whether  the  common  law  would  prevail  within  the  State 
in  the  absence  of  express  adoption  by  statute,  it  is  not  now  neces- 
sary to  discuss.  It  is  true,  also,  that  upon  subjects  wholly  beyond 
that  field  the  State  can  prescribe  no  such  rules  of  conduct.  But  it  is 
not  necessarily  true  that  within  its  field  of  mere  power  the  nation  has 
succeeded  to  or  adopted  any  code  of  laws  as  rules  of  civil  conduct, 
except  those  to  be  found  in  its  legislation.  There  is  no  express 
adoption  of  any  system  of  laws  by  the  Constitution  or  by  statute, 
and  the  theory  of  the  national  government  does  not  necessarily  imply 
that  it,  as  sovereign,  succeeds  to  any  system  of  laws.  The  inquiry 
is  one  of  fact,  rather  than  speculation,  and  is  to  be  solved  by  the 
intendments  of  the  Constitution.  The  inquiry  is  whether  the^  Con- 
stitution contemplated  that  within  its  field  of  power  the  nation  should 
succeed,  as  sovereign,  to  the  common  law.  or  whether,  within  that 


SECT.    III.]    SWIFT    V.    PHILADELPHIA    &   READING   RAILROAD   CO.      119 

field,  no  law  should  be  prescribed  by  the  nation,  except  by  express 
or  implied  enactment. 

It  is  plain  to  me  that,  so  far  as  the  nation  is  coterritorial  with  the 
States,  the  latter  was  intended.  The  great  bulk  of  governmental 
regulation  was  meant  to  be  left  to  the  States.  The  field  of  power 
conferred  upon  the  nation,  outside  of  that  essential  to  its  functions 
and  defence  as  a  natiou  among  nations,  is  principallj^  a  field  of  bare 
power.  Over  this  field  of  bare  power,  unenforced  by  congressional 
enactment,  the  powers  of  the  State  overlap.  In  these  fields  of  bare 
power  there  are  two  sovereigns,  —  the  State  until  the  nation  acts,  the 
nation  only  after  it  acts.  Out  of  this  has  grown  up  the  doctrine  of 
concurrent  jurisdiction,  now  too  firmly  fixed  to  be  debated,  much 
less  denied.  Thus,  notwithstanding  the  power  of  Congress  to  estab- 
lish uniform  laws  on  the  subject  of  bankruptcy,  or  to  fix  the  standard 
of  weights  and  measures,  or  to  regulate  interstate  commerce,  the 
States  have,  in  the  absence  of  national  laws  in  enforcement  of  these 
powers,  been  permitted  to  establish  their  own  systems  of  bank- 
ruptcy, their  own  standards  of  weights  and  measures,  and  their  own 
regulation  of  the  great  multitude  of  incidents  to  interstate  commerce. 
It  is  settled  constitutional  law  that  over  these  fields,  in  the  absence 
of  congressional  enactment,  the  laws  of  the  State  —  both  those  that 
grow  out  of  legislation  and  those  that  have  come  over  from  the  com- 
mon law  —  are  the  law  of  the  land.  And  thus  it  is  that  largely 
within  the  field  of  even  the  express  powers  of  the  nation,  the  laws  of 
the  State  have  the  primary  place,  and  are  only  excluded  when  Con- 
gress so  wills  by  express  legislative  enactment. 

Now,  what  consequences  follow  if  it  be  assumed  that  there  is  a 
common  law  of  the  nation,  —  rules  of  civil  conduct  prescribed  by  the 
nation  in  all  fields  of  its  constitutional  power?  The  legislature  of 
Illinois  has  adopted  the  common  law,  so  far  as  it  is  applicable  and 
of  a  general  nature,  and  all  acts  of  the  British  Parliament  made  in 
aid  thereof  prior  to  the  fourth  year  of  .lames  the  First,  exclusive  of 
designated  acts  of  Purlianient.  We  may  assume,  for  illuslrntion, 
tliat  the  common  law  of  the  United  States,  if  there  be  such,  within 
the  fields  of  bankruptcy,  of  standards  of  weights  and  measures,  and 
of  interstate  commerce,  is  definable  in  the  same  terms.  There 
exists,  then,  a  common  law  of  the  United  States  over  the  subject- 
matter  of  bankruptcies,  standards  of  weights  and  measures,  and  com- 
merce between  the  States,  for  laws  relating  to  all  of  these  subjects 
had  grown  up  and  were  well  established  in  England  prior  to  the 
fourth  year  of  the  reign  of  James  tlie  First.  Is  such  transplanted 
jurisprudence  the  law  of  the  United  States?  Have  its  numdates 
l>(!(;ii  prescribed  by  the  nation  as  rules  of  civil  conduct?  If  so,  how 
is  the  field  still  left  open  to  State  legislation?  liy  what  authority 
does  the  State,  in  the  face  of  such  existing  national  common  law, 
enact  and  enforce  bankriii)t  and  insolvent  laws,  change  the  standard 
of  weights  and  measures,  and  prescribe  tlu-,  multitude  of  regulations 


120        SWIFT    V.    rillLADELPHI.V    &    READING    RAILROAD    CO.       [CHAP,    I. 

that  relate  to  commerce,  interstate  as  well  as  intrastate?  If  there 
be  existing  laws  upon  these  subjects,  referable  to  the  nation  as  their 
authority,  would  it  not  follow  that  all  legislation  of  the  State,  within 
these  fields,  is  inoperative?  There  cannot  be  separate  systems  of 
law  over  the  same  subject-matter  and  the  same  territory,  emanating 
from  separate  sources  of  authority.  If  the  nation  already  has  a  sys- 
tem, and  such  system  is  within  its  field  of  power,  the  State  cannot 
invade  that  field  to  change  or  modify  it.  The  State  could  as  effec- 
tively repeal  or  alter  an  act  of  Congress  relating  to  bankruptcies  or 
commerce  between  the  States  as  repeal  or  alter  the  nation's  common 
law  touching  these  subjects,  if  there  be  such;  for  such  common  law 
would,  until  changed  by  Congress,  be  the  existing  mandate  of  the 
nation  upon  those  subjects.  The  proposition  contended  for  would 
exclude  at  once  the  whole  conception  of  concurrent  jurisdiction,  and 
leave  the  State  without  any  power  upon  any  subject  concerning 
which  Congress  was,  under  the  Constitution,  authorized  to  legislate. 
It  would  break  down  at  one  stroke  the  vast  and  important  legislation 
of  the  States,  that  has  universally  been  recognized  and  enforced  as 
the  law  of  the  land,  but  that  occupies  fields  within  the  bare  power  of 
congressional  legislation.  It  would  require  the  nation,  at  once,  to 
enter  upon  what  it  has  never  yet  attempted,  except  as  the  imperative 
emergency  arose,  namely,  a  complete  code  of  laws  upon  every  pos- 
sible subject  within  its  constitutional  powers,  where  the  provisions 
of  the  common  law  had  become  antiquated  or  burdensome.  If  the 
nation  has  already  prescribed  the  common  law  upon  subjects  within 
the  field  of  its  power,  the  States  are  thereby  excluded,  and  tlie  whole 
doctrine  of  concurrent  jurisdiction  is  not  only  without  logical  basis, 
but  is  practically  and  inherently  impossible. 

An  argument  even  stronger  than  these  consequences  to  a  settled 
judicial  interpretation  of  the  Constitution  is  found  in  the  letter  of 
the  Constitution  itself.  To  no  one  more  than  to  the  framers  of  that 
instrument  was  it  apparent  that  two  systems  of  law  upon  the  same 
subject,  from  different  governmental  authorities,  could  not  harmoni- 
ously exist.  One  system  or  the  other  must  be  regarded  as  supreme. 
Hence,  it  was  provided  (article  6)  "that  the  Constitution,  and  the 
laws  of  the  United  States  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made  or  which  shall  be  made,  under  the  authority  of 
the  United  States  shall  be  the  supreme  law  of  the  land  .  .  .  any- 
thing in  the  Constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding."  Observe  what  is  made  the  supreme  law:  The 
Constitution,  the  laws  which  shall  be  made  in  pursuance  thereof, 
and  all  treaties  made,  or  which  shall  be  made.  If,  under  the  Con- 
stitution, the  nation  adopted  or  succeeded  to  the  common  law  of 
England,  as  the  law  of  the  land,  within  the  field  of  national  power, 
why  should  there  have  been  no  mention  of  such  common  law  as  a 
part  of  the  supreme  law  of  the  land  ?  Why  should  it  be  exposed, 
any  moi-e  than  the  Constitution,  or  the  acts  of  Congress  thereafter 


SECT.    III.]     SWIFT    V.    PHILADELPHIA   &   READING    KAILKOAD    CO.       121 

made,  to  the  attack  or  modification  of  ttie  States?  Treaties  arc  nec- 
essarily made  laws  of  the  nation,  and,  lience,  the  existing  treaties 
were  made  inviolate  against  State  intrusion.  Why  should  the  then 
existing  laws,  introduced  into  the  system  as  continuing  laws,  share 
a  different  fate?  Was  it  contemplated  that  the  rules  of  civil  conduct 
prescribed  to  the  citizen  by  the  nation,  through  the  supposed  body 
of  the  common  law,  should  be  rules  only  so  long  as  the  States  per- 
mitted? If  a  national  common  law  prevails,  it  is  by  virtue  of  the 
Constitution.  Can  any  reason  be  assigned  why  acts  of  Congress 
were  made  supreme,  while  this  supposed  act  of  the  Constitution  was 
left  subservient? 

The  new  government,  for  obvious  reasons,  was  compelled  to  ob- 
serve its  treaties,  but,  excepting  these,  it  seems  plain  to  me  that 
the  framers  of  the  Constitution  contemplated  a  govei-nment  whose 
beginnings  were  there  and  then,  and  whose  commands  to  the  citizen 
must  be  found  in  the  letter  of  the  Constitution,  or  the  laws  thereafter 
promulgated.  The  great  bulk  of  authority  was  left  with  the  States. 
Each  of  these  had  already  existing  laws  that  covered  the  body  of 
ordinary  current  affairs.  The  nation  was  not  devised  to  give  law 
upon  these  affairs.  It  was  invested  with  a  field  of  vast  power,  but 
only  to  be  entered  as  the  needs  of  nationality  from  time  to  time  gave 
rise.  No  national  common  law  was  necessary.  The  subjects  upon 
which  common  law  acted  were  principally  left  to  the  States,  and 
there  it  already  existed.  It  was  apparent  that,  as  rapidly  as  the 
nation  was  called  upon  to  enter  upon  its  fields  of  otherwise  bare 
power,  Congress  could  supply  the  laws  needed. 

But,  it  is  urged,  the  Supreme  Court  has  invariably  recognized  the 
existence  of  general  law,  according  to  which  its  administration  of 
justice  has  proceeded.  Thus,  for  instance,  in  an  action  for  damages 
growing  out  of  negligence,  within  the  boundaries  of  Ohio,  the  Supreme 
Court  of  the  United  States  held  the  engineer  and  fireman  of  a  loco- 
motive, running  alone,  and  without  any  train  attached,  to  be  fellow 
servants  (Railroad  Co.  v.  Baugh,  149  U.  S.  368),  while  a  long  line 
of  decisions  of  the  Supreme  Court  of  the  State  held  they  were  not. 
So,  too,  the  Supreme  Court  of  the  United  States  held  that  the  payee 
or  indorsee  of  a  bill,  upon  its  presentment  to  the  drawee,  and  his 
refusal  to  accept,  had  the  right  to  immediate  recourse  against  the 
drawer,  notwithstanding  a  statute  of  the  State  forbidding  suit  to 
bo  brought  in  such  a  case  until  maturity  of  the  bill.  Watson  v. 
Tarpley,  18  IIow.  .517.  It  is  insisted  that  these  and  other  cases 
show  the  existence  of  some  general  law,  separate  from  and  independ- 
ent of  the  law  of  the  land  prescribed  by  the  States.  This  does  not, 
in  my  opinion,  follow.  Indeed,  it  could  not  follow  without  intro- 
ducing into  the  jurisprudence  of  this  country  the  anomaly  of  the 
existence  of  two  laws  over  the  same  territory,  and  upon  the  saiiif 
subject-matter,  enforceable,  respectively,  according  to  the  accidents 
of  the  residence  of  the  parties  l)etw('en  whom  the  differences  arise 


122        SWIFT   V.   PHILADELPHIA   &    READING   RAILROAD    CO.       [CHAt*.    u 

Suppose,  in  the  Ohio  case,  that  two  firemen  had  been  on  the  engine 
with  the  engineer,  and  both  had  been  injured  through  his  negligence; 
one  of  the  firemen  living  in  the  State  of  the  defendant,  and  the  other 
living  in  another  State.  To  each  of  the  injured  the  locus  is  iden- 
tical; the  negligence  is  identical.  Is  it  possible  that  the  accidental 
difference  of  residence  brings  into  play  a  difference  of  law  affecting 
their  rights  so  radically?  Is  the  obligation  of  the  railroad  upon  the 
soil  of  Ohio,  under  circumstances  identical,  different  to  the  Ohioau 
from  what  it  is  to  the  Kentuckian?  The  Supreme  Court  could  not 
have  so  held.  In  the  case  cited  the  federal  court  administered,  not 
the  law  of  the  United  States,  but  the  law  of  Ohio.  The  difference 
between  its  holdings  and  those  of  the  courts  of  Ohio  was  not  due  to 
a  difference  of  law,  but  to  a  different  interpretation  of  the  law.  In 
all  cases  to  which  the  jurisdiction  of  the  federal  court  is  extended, 
its  duty  is,  not  only  to  ascertain  the  facts,  but  to  interpret  the  law 
applicable  thereto,  as  well.  The  law  is  the  same  law  interpreted  by 
the  State  courts,  but  the  interpretations  are  not  necessarily  the  same. 
The  decisions  of  the  State  court  ai'C  not  necessarily  the  law,  but  only 
mirrors  of  the  law.  They  may  be  mistaken  interpretations,  and 
therefore  incorrect  mirrors.  The  litigant  in  the  federal  court  is 
entitled  to  the  law  as  it  is,  not  simply  to  the  local  judicial  reflection 
of  the  law.  What  the  Supreme  Court  in  effect  said  in  that  case  was, 
not  that  the  law  applicable  to  the  case  before  it  was  different  from 
the  law  applicable  to  any  like  case  arising  in  Ohio,  but,  that  the 
decisions  of  the  State  courts  had  not  accurately  evidenced  the  law, 
and  were  therefore  not  to  be  followed. 

The  same  observation  applies  to  the  Mississippi  case.  The  gen- 
eral commercial  law  in  force  in  Mississippi,  as  well  as  in  other 
States  of  the  Union,  gave  the  payee  of  a  bill  immediate  recourse 
upon  the  drawer,  upon  the  refusal  of  the  drawee  to  accept.  The 
statute  of  the  State,  however,  forbade  suit  to  be  brought  until  after 
the  maturity  of  the  bill.  The  question  was  whether  a  litigant  seek- 
ing recovery  through  the  federal  courts,  before  maturity,  was  barred 
by  this  statute.  Undoubtedly,  the  State  had  the  right  to  modify  the 
commercial  law  that  should  prevail  within  its  boundaries.  But  the 
statute  in  question  created  no  change  in  substance  of  the  commercial 
law,  but  only  in  the  remedy  that  the  parties  should  enjoy.  It  was 
purely  remedial,  and  not  substantive,  and,  so  far  as  it  was  remedial 
was  not  necessarily  binding  upon  the  federal  court.  The  federal 
court  sat  in  Mississippi  to  enforce  the  commercial  law  applicable 
to  the  given  case,  and  as  such  was  an  independent  tribunal,  to  be 
governed,  as  to  its  remedial  rules,  by  the  procedure  to  be  found  in 
the  common  law,  the  acts  of  Congress,  and  the  policy  of  the  State, 
so  far  as  such  was  found  just  and  applicable.  Whether  the  prohibi- 
tion of  this  remedial  statute  should  be  applied  to  a  suitor  in  the 
federal  tribunal  was  to  be  determined  by  itself,  upon  considerations 
of  justice,  and  did  not  mandatorily  follow  the  enactment  of  the  local 
statute. 


SECT.    III.]    SWIFT   V.   PHILADELPHIA   &   READING   RAILROAD    CO.      123 

That  the  federal  courts  enforce,  not  a  general  law  of  the  United 
States,  but  the  law  of  the  particular  States  applicable  to  the  contro- 
versy, is  demonstrated  by  an  illustration  arising  every  daj'.  At 
common  law,  neither  the  heirs  nor  administrators  could  recover  dam- 
ages for  the  death  of  the  decedent,  though  caused  by  negligence. 
There  has  been  no  act  of  Congress  changing  this  rule.  In  most 
of  the  States,  however,  the  common  law,  in  this  respect,  has  been 
moditied  by  permitting  a  recovery  in  such  cases  to  a  given  amount. 
The  federal  courts  are  every  day  made  the  scene  of  such  suits.  Are 
the  judgments  granted  therein  in  pursuance  of  any  common  law  of  the 
United  States?  Manifestly,  not;  for  in  the  common  law,  unmodi- 
fied, there  can  be  found  no  warrant  for  such  suits.  The  actions, 
though  in  the  federal  court,  are  based,  as  in  the  State  court,  upon 
rules  of  civil  conduct  prescribed  by  the  State  through  its  adopted 
common  law,  with  the  modifications  thereof  prescribed  by  the  State. 

I  can  conceive  that  it  may  be  said  that  though,  in  the  illustration 
given,  the  federal  courts  enforce  State  law,  it  would  not  follow  that, 
in  actions  arising  from  matters  within  the  field  of  the  nation's 
powers,  the  federal  court  may  not  find  a  United  States  common  law 
to  enforce.  I  am  not  considering  that  distinction,  but  am  treating 
of  cases  which  are  urged  wholly  irrespective  of  such  distinction. 
Neither  the  Ohio  nor  the  Mississippi  case  cited,  nor  any  of  those  to 
■which  my  attention  has  been  called  in  that  connection,  involved  sub- 
jects within  the  field  of  the  nation's  power.  The  Ohio  case  arises 
from  the  law  of  negligence,  —  a  purely  police,  and  therefore  local, 
regulation,  — and  the  Mississippi  case  does  not  disclose  any  element 
of  interstate  commerce  or  other  national  power.  Indeed  if  the  deci- 
sions cited  established  the  existence  of  a  United  States  common  law 
or  general  law  over  the  subject-matters  involved,  it  would  follow  that 
the  line  of  demarkation  between  State  and  national  fields  of  pov;er 
had  nothing  to  do  with  the  solntion. 

But  it  is  urged  that  the  Reports  abound  with  cases  in  which  the 
federal  courts,  in  construing  ordinances  and  statutes,  and  otherwise 
ascertaining  the  rights  of  parties,  resort  for  light  to  the  common 
law.  It  could  not  be  otherwise.  The  common  law  is  the  back- 
ground against  which  tlie  outlines  of  our  institutions  are  drawn,  and 
the  foundation  upon  which  the  transactions  of  our  race  are  builded. 
It  is  as  essential  to  interpretation  as  light  is  to  the  operations  of 
the  microscope.  But  it  is  not  thereby  made  the  law  of  the  land. 
Mechanics  and  medicine  are  likewise  essential  to  interpretation. 
Only  by  looking  into  tiieir  lields  can  courts  accurately  ascertain  the 
meaning  of  many  transactions  or  statutes.  They  are  the  settings  of 
transactions  and  statutes,  but  do  not  by  reason  of  that  become  a  part 
of  the  law  of  the  land.  The  law  of  the  land  is  a  rule  of  civil  con- 
duct prescribed  by  the  suprcnnt;  |)()wer  in  the  Stale.  An  appeal  to 
tiie  common  law  for  light  is  entir(!l3' distinct  from  a  searcli  of  the 
law  of  the  land  for  tlie  evidence  of  a  command. 


124       SWIFT   V.    PHILADELPHIA   &   READING   EAILROAD    CO.      [CHAP.    I. 

But,  it  is  asked,  what  law  prevails  in  the  Territories  aud  the  Dis- 
trict of  Columbia?  The  Constitution  itself  answers.  Upon  Con- 
gress is  conferred  (art.  1,  sect.  8)  the  right  "to  exercise  exclusive 
legislation  "  over  the  District  of  Columbia,  and  all  places  purchased 
for  the  erection  of  forts,  arsenals,  etc.,  and  (art.  4,  sect,  o)  to  "make 
all  needful  rules  aud  regulations  respecting  the  territory  of  the  United 
States."  Over  the  area  covered  bj'  the  Territories  and  the  District 
of  Columbia,  therefore,  there  is  but  one  sovereign.  The  territorial 
governments  are  simply  the  agencies  of  the  nation,  and  are,  in  this 
respect,  different  from  the  States.  But,  as  I  have  pointed  out,  there 
is  a  law  of  the  land  attached  to  every  inch  of  our  soil.  It  is,  in 
some  cases,  the  common  law ;  in  others,  the  civil  law,  —  dependent 
chiefly  upon  the  character  of  the  earlier  dominion  extended  over  it. 
Now  there  being  but  one  sovereign,  —  the  nation,  —  the  common 
law  or  the  civil  law,  as  the  case  may  be,  is  necessarily  atti'ibutable 
to  it,  as  the  only  supreme  power  in  the  State.  Here  the  nation  has 
succeeded  to  the  earlier  sovereignties  which  prescribed  the  common 
or  civil  law  as  the  law  of  the  land.  There  is,  therefore,  a  common 
or  civil  law  of  the  United  States  over  those  areas  not  yet  taken  into 
the  boundaries  of  the  States. 

But  there  is  no  inconsistency  between  this  and  the  position  here- 
inbefore taken.  Each  inch  of  soil  necessarily  has  its  law  of  the 
land,  but,  in  the  areas  in  which  the  nation  and  State  are  coterritorial, 
the  sovereignty  to  which  all  law  is  attributable,  except  such  as  is 
found  in  the  Constitution  of  the  United  States  and  the  laws  in  pur- 
suance thereof,  and  the  treaties,  is  that  of  the  State.  There  the 
common  law  is  not  attributable  to  the  United  States  as  sovereign, 
because  neither  the  Constitution,  nor  laws  of  the  United  States  in 
pursuance  thereof,  have  so  adopted  it.  The  distinction,  though  it 
might  theoretically  and  speculatively  be  otherwise,  is  actual,  as 
shown  by  the  intendments  of  the  Constitution  and  the  doctrine  of 
concurrent  jurisdiction  already  pointed  out,  and  it  is  only  with 
actualities  that  the  court  can  deal. 

It  is  also  asked,  what  law  is  in  force  upon  the  navigable  waters 
of  the  United  States,  unless  there  be  a  general  law  of  the  United 
States?  The  answer  is  again  found  in  the  Constitution  (art.  3, 
sect.  2),  which  extends  the  judicial  power  of  the  United  States  to  all 
cases  of  admiralty  and  maritime  jurisdiction.  This  is  an  express 
bestowal,  in  the  fundamental  law  of  the  land,  of  all  maritime  power 
and  authority,  upon  one  of  the  departments  of  the  nation.  The 
bestowal  is  as  broad  and  as  exclusive  as  the  power  to  declare  war. 
It  necessarily  cai'ries  with  it  the  code  of  rules  applicable  to  maritime 
jurisdiction.  That  code  is  specifically  a  national  code.  It  is  neither 
common  law  nor  general  law.  It  is,  in  the  language  of  Justice 
Bradley,  in  The  Lotta wanna,  21  Wall.  558,  "like  international  laws, 
or  the  laws  of  war  which  have  the  effect  of  law  in  any  country  no 
further  than  they  are  accepted  and  received  as  such."     The  clause  is 


SECT.    Ill,]     SWIFT    V.    PHILADELPHIA   &   READING    KAILKOAD   CO.      125 

simply  the  bestowal  upon  the  nation  of  a  purely  national  power,  self* 
enforcing  by  the  employment  of  such  rules  as  the  nation  alone  may 
prescribe.  But  beyond  this  special  jurisdiction,  carved  out  of  the 
general  jurisdiction,  and,  for  national  purposes,  bestowed  exclu- 
sivel}'  upon  the  national  government,  the  laws  of  the  States  within 
whose  territories  the  navigable  waters  lie  are  still  in  force,  subject 
to  the  exigencies  and  necessities  of  the  maritime  power.  The  terri- 
tory covered  by  the  navigable  waters  is  under  the  law  of  the  land 
which  the  proper  State  may  prescribe.  The  existence,  therefore,  of 
this  power  in  the  nation,  adds  nothing  to  the  proposition  that  there 
is  a  United  States  common  law  of  the  land. 

But  it  is  said  that,  if  there  is  no  United  States  common  law  apply- 
ing to  the  field  of  interstate  commerce,  there  could  have  been,  until 
the  enactment  of  the  Interstate  Commerce  Act,  no  law  in  that  field 
whatever.  And  it  is  inferred  from  this  that  common  carriers  within 
that  field,  until  the  enactment  of  the  Interstate  Commerce  Act,  could 
not  have  been  liable  for  refusing  to  receive  goods  or  passengers,  or 
delaying  their  arrival,  or  for  other  like  wrongs  or  delinquencies.  It 
is  never  safe  to  argue  the  existence  of  a  law  from  the  necessities  that 
ought  to  give  rise  to  it.  The  sovereign  power  does  not  alwa^'s  meet 
even  the  apparent  needs.  And,  if  law  were  always  to  be  inferred 
where  needs  were  found,  I  fear  a  diversity  as  wide  as  the  personal 
predilections  of  the  judges  would  be  introduced.  But  the  gaping 
vacuum  upon  which  the  argument  is  predicated  does  not  in  fact 
exist.  The  power  of  the  nation  over  interstate  commerce  is  exclu- 
sive only  in  respect  of  those  features  where  a  uniform  rule  is  impera- 
tive, —  features  that  are  essentially  national  affairs.  In  all  other 
respects,  until  Congress  acts,  the  field  of  interstate  as  well  as  intra- 
state commerce  is  occupied  by  the  power  and  existing  laws  of  the 
State.  Into  this  latter  classification,  undoubtedly,  would  fall  the 
duty  of  the  common  carrier  to  receive  all  proper  goods  offered  to  it 
for  transportation,  to  make  no  undue  discrimination  between  shippers 
of  a  like  class,  and  to  transport  with  reasonable  expedition,  Tbere 
is  nothing  essentially  national  in  these  requirements.  They  can 
reasonably  be  left  to  the  judgment  of  the  local  law  where  the  goods 
are  offered.  Indeed,  the  constant  and  uninterrupted  ai)plication  of 
such  local  law  to  these  fields  of  interstate  commerce,  through  a  cen- 
tury, forestalled  the  need  of  any  national  legislation,  and  constitutes 
a  cogent  illustration  of  the  non-existence  of  a  common  law  attribu- 
table to  the  nation  as  its  sovereign  and  giver;  for,  how  could  the 
many  modifications  introduced  by  tiie  Stat<'  into  fliese  common-law 
duties  and  liabilities  be  effective  if  Ihcri!  e.\isted  also  a  national 
common  law  upon  the  same  subjects,  unmodified  by  Congress,  and 
insusceptible  of  modification  by  the  States? 

Having  (Inly  considered  these  criticisins  upon  and  variations  from 
my  former  holding  l)y  some  of  the  judges  of  tiic  other  circuits,  I 
remain  of  the  opinion  that  there  is  no  national  common  or  general 


126      SWIFT   V.    PHILADELPHIA   &   READING   EAILEOAD    CO.      [CHAP.    L 

law,  in  the  sense  of  a  rule  of  civil  conduct,  prescribed  by  the  nation, 
as  sovereign,  which  can  be  made  the  basis  of  an  action  to  recover 
back  rates,  simply  because  the  court  may  find  them  to  be  unreason- 
able. So  far  as  the  existing  law  applicable  to  the  subject  of  rates  in 
interstate  commerce  was  concerned,  prior  to  the  Interstate  Commerce 
Act,  the  shipper  and  the  carrier  were  at  liberty  to  make  such  con- 
tract as  they  could  agree  upon ;  and  such  a  contract  would  be  left 
untouched,  unless  for  such  reasons  as  would  justify  the  abrogation 
of  contracts  between  other  parties  and  upon  other  subjects.  This, 
of  course,  does  not  exempt  the  carrier  from  the  duty  of  carrying  out 
the  contracts  actually  made.  If,  between  it  and  the  shipper,  a  spe- 
cific rate  was  fixed,  such  will  control ;  and  if  no  rate  was  fixed,  the 
ordinary  method  employed  by  the  law  to  supply  the  missing  element 
of  the  contract  is  to  be  followed.  If  no  rate  was  fixed,  and  the  ship- 
ment was  not  made  in  contemplation  of  any  specific  rate,  the  impli- 
cations of  the  law  are  that  the  parties  intended  a  reasonable  rate; 
and  the  exaction  in  such  cases  of  an  unreasonable  rate  can  be  made 
the  basis  of  a  recovery,  not  because  of  the  existence  of  any  law 
which  prohibits  the  exaction  of  unreasonable  rates  generally,  but 
because,  in  the  particular  case  in  hand,  the  exact  rate  is  the  omitted 
element  of  the  contract,  and  must  therefore  be  supplied  by  the  impli- 
cations of  the  law. 

The  majority  of  the  counts  in  the  declaration  under  consideration 
proceed  expressly  upon  the  theory  that,  irrespective  of  the  contract 
between  the  parties,  the  law  prohibited  the  exaction  of  unreasonable 
rates,  and  allowed  their  recovery  back  upon  a  showing  of  the  fact. 
To  these  counts,  in  my  opinion,  a  demurrer  ought  to  be  sustained. 
Several  of  the  counts  are  evidently  drawn  upon  the  theory  that  no 
specific  rate  was  at  the  time  agreed  upon,  or  in  contemplation,  and 
that  in  view  of  this  the  rate  actually  exacted,  being  unreasonable, 
was  contrary  to  the  element  of  the  contract  read  into  it  by  the  impli- 
cations of  the  law.  So  far  as  these  counts  relate  to  shipments  prior 
to  the  Interstate  Commerce  Act,  they  present  some  difficulties,  and 
especially  so,  in  view  of  the  fact  that  they  compress  into  single  aver- 
ments the  different  shipments  of  months  and  years,  each  of  which 
must  necessarily  have  been  distinct  from  the  other,  and  properly 
subject  to  distinct  contracts  or  rates  in  contemplation.  So  far  as 
these  counts  relate  to  shipments  after  the  Interstate  Commerce  Act, 
I  am  clear  that,  in  absence  of  the  averment  that  no  rates  were  pub- 
lished and  in  existence  as  is  required  by  the  law,  the  actions  would 
not  lie.  By  requiring  the  fixing  and  publication  of  these  rates,  the 
Interstate  Commerce  Act  supplies  at  least  prima  facie  evidence  of 
the  contract  rate,  which  can  only  be  overcome  by  averment  in  avoid- 
ance thereof.  One  of  the  counts  proceeds  upon  the  theory  of  unjust 
discrimination  between  shippers,  but  whether  it  alleges  with  suffi- 
cient preciseness  that  the  discrimination  was  between  shippers  who, 
by  reason  of  contemporaneousness  of  shipment,  route  traversed,  and 


SECT.  III.J      WESTEUN    UNION    TELb:.    (0.    V.    CALL    I'UB.    CO.  127 

character  of  product  shipped,  were  entitled  to  like  rates,  does  not 
clearly  appear. 

My  conclusion,  on  the  ■whole,  is  to  sustain  the  motion,  and  allow 
the  demurrers  to  be  tiled,  intending  to  sustain  the  demurrers  to  all 
the  counts,  except  those  relating  to  discrimination,  and  those  relating 
to  shipments  prior  to  the  Interstate  Commerce  Act,  which  proceed 
upon  the  idea  that  an  express  contract  for  rates  was  not  concluded, 
but  was  left  to  the  implications  of  the  law.  On  the  counts  of  this 
character,  I  will  hear  the  dennirrer,  to  determine  if  the  allegations  of 
the  count  are  sufficiently  specific  and  single  to  bring  them  within  the 
right  of  recovery. 


WESTERN   UNION  TELEGRAPH  CO.  r.  CALL 
PUBLISHING   CO. 

Supreme  Court  of  the  United  States.     190L 

[Reported  181  United  States,  92.] 

This  was  an  action  commenced  on  April  29,  1891,  in  the  District 
Court  of  Lancaster  County,  Nebraska,  bj'  the  Call  Publishing  Corn- 
pan}',  to  I'ecover  sums  alleged  to  have  been  wrongfulU"  charged  and 
collected  from  it  by  the  defendant,  now  plaintiff  in  error,  for  tele- 
grapliic  services  rendered.  According  to  the  petition  the  plaintiff 
had  been  engaged  in  publishing  u  daily  newspaper  in  Lincoln,  Neb- 
raska, called  The  Lincoln  Daily  Call.  The  Nebraska  State  Journal 
was  another  newspaper  published  at  the  same  time  in  the  same  city, 
b\' the  State  Journal  Company.  Eacli  of  these  papers  received  Asso- 
ciated Press  despatches  over  the  lines  of  the  defendant.  The  petition 
alleged  : 

"  4th.  That  during  all  of  said  period  the  defendant  wrongfully  and 
unjustly  discriminated  in  favor  of  the  said  State  .loiiiiial  Com|)any  and 
against  this  |)laintiff,  and  gave  to  the  State  Journal  C()in[)aiiy  an  undue 
advantage,  in  this  :  that  while  tlie  defendant  demanded,  charged,  and 
collected  of  and  from  the  plaintiff  for  the  services  aforesaid  sevent\'- 
five  dollars  per  month  for  such  despatches,  amounting  to  1500  words 
or  less  daily,  or  at  the  rate  of  not  less  than  five  dollars  per  100  words 
daily  per  month,  it  charged  and  collected  fi'om  tiie  said  State  Journal 
Com[)any  for  the  same,  like,  and  contem|)()raneous  services  only  tlie 
sum  of  Si. 50  per  100  words  daily  per  mouth. 

"  Plaintiff  alleges  that  the  sum  so  demanded,  charged,  collected,  and 
received  b}-  the  said  defendant  for  tlie  servici'sso  rendered  tlie  plaintiff, 
as  aforesaid,  was  excessive  and  unjust  t(j  the  extent  of  the  amount  of 
the  excess  over  the  rate  chaigc^d  the  said  State  Journal  Company  for 
the  same  .services,  which  excess  w.-is  three  dollars  and  fifty  ccMits  per 
one  liiindrefl  words  daily  per  month.  ;ini|  u>  fli.it,  extent  it  w;is  an  iin- 
jiist  and  wrongful  disctrimiiiation  ugainsL  the  i)laintirf  and  in  favor  of 
the  State  .Journal  (Jompany. 


128  WESTERN    UNION    TELE   CO.    V.   CALL    PUB.    CO.        LcHAP.  L 

"That  plaintiff  was  at  all  times  and  is  now  compelled  to  pay  said 
excessive  ctiarges  to  the  defendant  for  said  services  or  to  do  without 
the  same  ;  that  plaintiff  could  not  dispense  with  such  despatches  with- 
out ver}'  serious  injur\'  to  its  business." 

The  telegraph  company's  amended  answer  denied  any  unjust  dis- 
crimination ;  denied  that  the  sums  charged  to  the  plaintiff  were  unjust 
or  excessive,  and  alleged  that  such  sums  were  no  more  than  a  fair  and 
reasonable  charge  and  compensation  therefor,  and  similar  to  charges 
made  upon  other  persons  and  corporations  at  Lincoln  and  elsewhere 
for  like  services.  The  defendant  further  claimed  that  it  was  a  cor- 
poration, engaged  in  interstate  commerce;  that  it  had  accepted  the 
provisions  of  tlie  act  of  Congress  entitled  "  An  act  to  aid  in  the  con- 
struction of  telegrapii  lines  and  to  secure  to  the  government  the  use  of 
the  same  for  postal  and  other  purposes,"  approved  July  24,  1866  ;  that 
it  had  constructed  its  lines  under  the  authority  of  its  charter  and  that 
act,  and  denied  the  jurisdiction  of  the  courts  of  Nebraska  over  this 
controversy.  A  trial  was  had,  resulting  in  a  verdict  and  judgment  for 
the  plaintiff,  which  judgment  was  reversed  by  the  Supreme  Court  of 
the  State.  44  Neb.  326.  A  second  trial  in  the  District  Court  resulted 
in  a  verdict  and  judgment  for  the  plaintiff,  which  was  affirmed  by  the 
Supreme  Court  of  the  State  (58  Neb.  192),  and  thereupon  the  tele- 
graph compan}'  sued  out  this  writ  of  error. 

Brewer,  J.^  The  contention  of  the  telegraph  company  is  substantially 
that  the  services  which  it  rendered  to  tlie  publishing  company  were  a 
matter  of  interstate  commerce  ;  that  Congress  has  sole  jurisdiction  over 
such  matters,  and  can  alone  prescribe  rules  and  regulations  therefor  ; 
that  it  had  not  at  the  time  these  services  were  rendered  prescribed  any 
regulations  concerning  them  ;  that  there  is  no  national  common  law, 
and  that  whatever  may  be  the  statute  or  common  law  of  Nebraska  is 
wholly  immaterial ;  and  that  therefore,  there  being  no  controlHng 
statute  or  common  law.  the  State  court  erred  in  holding  the  telegraph 
company  liable  for  any  discrimination  in  its  charges  between  the 
plaintiff  and  the  Journal  company.  In  the  brief  of  counsel  it  is  said  : 
"The  contention  was  consistently  and  continuously  made  npon  tlie 
trial  by  the  telegraph  company  that,  as  to  the  State  law,  it  could  not 
apply  for  the  reasons  already  given,  and  that,  in  the  absence  of  a 
statute  by  Congress  declaring  a  rule  as  to  interstate  traffic  by  the  tele- 
graph company,  such  as  was  appealed  to  by  the  publishing  company, 
there  was  no  law  upon  the  subject."  The  logical  result  of  this  con- 
tention is  that  persons  dealing  with  common  carriers  engaged  in  inter- 
state commerce  and  in  respect  to  such  commerce  are  absolutely  at  the 
mercy  of  the  carriers.  It  is  true  counsel  do  not  insist  that  the  telegraph 
company  or  any  other  company  engaged  in  interstate  commerce  may 
charge  or  contract  for  unreasonable  rates,  but  they  do  not  say  that 
they  may  not,  and  if  there  be  neither  statute  nor  common  law  control- 

1  Part  of  the  opinion,  in  which  the  charge  of  the  court  at  the  trial  was  given,  is 
omitted.  —  Ed. 


SECT,  III.]      WESTERN    UNION    TELE.    CO.    V.    CALL    PUB.    CO. 


129 


ling  the  action  of  interstate  carriers,  there  is  nothing  to  limit  their 
ol)li"-ation  in  respect  to  the  matter  of  reasonableness.  We  should  be 
verv  loath  to  hold  that  in  the  absence  of  congressional  action  there  are 
no  restrictions  on  the  power  of  interstate  carriers  to  charge  for  their 
services  ;  and  if  there  be  no  law  to  restrain,  the  necessary  result  is 
that  there  is  no  limit  to  the  charges  they  may  make  and  enforce.  .  .  . 
Common  carriers,  whether  engaged  in  interstate  commerce  or  in 
that  wholly  within  the  State,  are  performing  a  public  service.  They 
are  endowed  by  the  State  with  some  of  its  sovereign  powers,  such  as 
the  right  of  eminent  domain,  and  so  endowed  by  reason  of  the  public 
service  they  render.  As  a  consequence  of  this  all  individuals  have 
equal  rights  both  in  respect  to  service  and  charges.  Of  course,  such 
equality  of  right  does  not  prevent  differences  in  the  modes  and  kinds 
of  service  and  different  charges  based  thereon.  There  is  no  cast-iron 
line  of  uniformity  which  prevents  a  charge  from  being  above  or  below 
a  particular  sum,  or  requires  that  the  service  shall  be  exactly  along 
the  same  lines.  But  that  priucii)le  of  equality  does  forbid  any  differ- 
ence in  charge  which  is  not  based  upon  difference  in  service,  and  even 
when  based  upon  difference  of  service,  must  have  some  reasonalile  re- 
lation to  the  amount  of  difference,  and  cannot  be  so  great  as  to  produce 
an  unjust  discrimination.  To  affirm  that  a  condition  of  things  exists 
under  which  common  carriers  anywhere  in  the  country,  engaged  in  any 
form  of  transportation,  are  relieved  from  the  burdens  of  these  obliga- 
tions, is  a  proposition  which,  to  say  the  least,  is  startling.  And  yet, 
as  we  have  seen,  that  is  precisely  the  contention  of  the  telegraph  com- 
pany. It  contends  that  there  is  no  federal  common  law,  and  that 
such  has  been  the  ruling  of  this  court ;  there  was  no  federal  statute 
law  at  the  time  applical)le  to  this  case,  and  as  the  matter  is  interstate 
commerce,  wholly  removed  from  State  jurisdiction,  the  conclusion  is 
reached  that  there  is  no  controlling  law,  and  the  question  of  rates  is 
left  entirely  to  the  judgment  or  whim  of  the  telegraph  company. 

This  court  has  often  iield  that  the  full  control  over  interstate  com- 
merce is  vested  in  Congress,  and  that  it  cannot  be  regulated  by  the 
States.  It  has  also  held  that  tlie  inaction  of  Congress  is  indicative  of 
its  intention  that  such  interstate  commerce  shall  be  free,  and  many 
cases  are  cited  b}-  counsel  for  the  telegraph  comjjany  in  which  these 
propositions  have  been  announced.  Reference  is  also  made  to  <)i)inions 
in  vvhicli  it  has  been  stated  that  there  is  no  federal  common  law  ditfc^r- 
ent  and  distinct  from  the  common  law  existing  in  the  several  States. 
Thus,  in  Smith  v.  Alabama,  124  U.  S.  465,  478,  it  was  said  by  Mr. 
Justice  Matthews,  speaking  for  the  court: 

'•There  is  no  common  law  of  the  United  States  in  the  sense  of  a 
national  customary  law  distinct  from  the  common  law  of  England  as 
adopted  by  the  several  States,  each  for  itself,  applied  as  its  local  law, 
and  subject  to  such  alteration  as  may  be  provided  by  its  own  statutes. 
Wheaton  v.  Peters,  8  Pet.  r>91.  A  determination  in  a  given  case  of 
what  that  law  is  may  be  different  in  a  court  of  the  United  States  from 


130  WESTERN    UNION    TELE.    CO.    V.    CALL    PUB.    CO.        [CHAP.  I. 

that  which  prevails  in  the  judicial  tribunals  of  a  particular  State.  This 
arises  from  the  circumstance  that  courts  of  the  United  States,  in  cases 
within  their  jurisdiction  where  they  are  called  upon  to  administer  the 
law  of  the  State  in  which  the}-  sit,  or  by  which  the  transaction  is 
governed,  exercise  an  independent,  though  concurrent,  jurisdiction, 
and  are  required  to  ascertain  and  declare  the  law  according  to  their 
own  judgment.  This  is  illustrated  by  the  case  of  Railroad  Co.  v. 
Lockwood,  17  Wall.  357,  where  the  common  law  prevailing  in  the 
State  of  New  York  in  reference  to  the  liabiUty  of  common  carriers  for 
negligence  received  a  ditierent  interpretation  from  that  placed  upon  it 
by  the  judicial  tribunals  of  the  State;  but  the  law  as  applied  is  none 
the  less  the  law  of  that  State,"  p.  478. 

Properly  understood,  no  exceptions  can  be  taken  to  declarations  of 
this  kind.  There  is  no  body  of  federal  common  law  separate  and  dis- 
tinct from  the  common  law  existing  in  the  several  States  in  the  sense 
that  there  is  a  body  of  statute  law  enacted  by  Congress  separate  and 
distinct  from  the  body  of  statute  law  enacted  by  the  several  States. 
But  it  is  an  entirely  different  thing  to  hold  that  there  is  no  common 
law  in  force  generally  throughout  the  United  States,  and  that  the 
countless  multitude  of  interstate  commercial  transactions  are  subject 
to  no  rules  and  burdened  by  no  restrictions  other  than  those  expressed 
in  the  statutes  of  Congress. 

What  is  the  common  law?     According  to  Kent :   "  The  common  law 
includes  those  principles,  usages,  and  rules  of  action  applicable  to  the 
government  and  security  of  person  and  property  which  do  not  rest  for 
their  authority  upon  any  express  and  positive  declaration  of  the  will  of 
the  legislature."  1   Kent,  471.     As  Blackstone  says :   "  Whence  it  is 
that  in  our  law  the  goodness  of  a  custom  depends  upon  its  having  been 
used  time  out  of  mind  ;  or,  in  the  solemnity  of  our  legal  phrase,  time 
whereof  the  memory  of  man  runneth  not  to  the  contrary.     This  it  is 
that  gives  it  its  weight  and  authority  ;    and  of  this  nature  are  the 
maxims  and  customs  which  compose  the  common  law,  or    lex    non 
scripta,  of  this  kingdom.     This  unwritten,  or  common,  law,  is  properly 
distinguishable  into  three  kinds:   1.  General  customs;  which  are  the 
universal  rule  of  the  whole  kingdom,  and  form  the  common  law,  in  its 
stricter  and  more  usual  signification."     1  Blackstone,  67.     In  Black's 
Law  Dictionary,  page  232,  it  is  thus  defined  :  "  As  distinguished  from 
law  created  by  the  enactment  of  legislatures,  the  common  law  comprises 
the  body  of  those  principles  and  rules  of  action  relating  to  the  govern- 
ment and  security  of  persons  and  property,  which  derive  their  authoiity 
solely  from  usages  and  customs  of  immemorial  antiquity,  or  from  the 
judgments  and  decrees  of  the  courts  recognizing,  affirming,  and  enforc- 
ing  such   usages   and    customs ;    and,   in   this  sense,   particularly  the 
ancient  unwritten  law  of  England." 

Can  it  be  that  the  great  multitude  of  interstate  commercial  trans- 
actions are  freed  from  the  burdens  created  by  the  common  law,  as  so 
defined,  and  are  subject  to  no   rule  except  that  to  be  found  in   the 


SECT.  III.j       WESTERN    UNION    TELE.    CO.    V.    CALL    ITB.    CO.  13l 

statutes  of  Congress?  We  tire  clearly  of  oi)iiiion  that  this  cannot  be 
so,  and  that  the  principles  of  the  common  law  are  operative  upon  all 
interstate  commercial  transactions  excei)t  so  far  as  they  are  modified 
bv  congressional  enactment. 

But  this  question  is  not  a  new  one  in  this  court.  In  Interstate 
Commerce  Commission  r.  Baltimore  &  Ohio  Railroad,  145  U.  S.  2Cy^, 
275,  a  case  which  involved  interstate  commerce,  it  was  said  by  Mr. 
Justice  Brown,  speaking  for  the  court : 

"Prior  to  the  enactment  of  the  act  of  February  4,  1887,  to  regulate 
commerce,  connnonly  known  as  tiie  interstate  commerce  act,  24  Stat. 
379,  c.  104,  railway  traffic  in  this  country  was  regulated  by  the  princi- 
ples of  common  law  applicable  to  common  carriers." 

In  Bank  of  Kentucky  r.  Adams  Express  Co.,  and  Planters'  Bank  v. 
Express  Co.,  93  U.  S.  174,  177,  the  express  companies  received  at 
New  Orleans  certain  packages  for  delivery  at  Louisville.  These  were 
interstate  shipments.  In  the  course  of  transit  the  packages  were 
destroyed  by  fire,  and  actions  were  brought  to  recover  the  value 
thereof.  The  companies  defended  on  the  ground  of  an  exemption 
from  liability  created  by  the  contracts  under  which  they  transported 
the  packages.  Mr.  Justice  Strong,  delivering  the  opinion  of  the  court 
after  describing  the  business  in  which  the  companies  were  engaged, 
said  : 

"Such  being  the  business  and  occupation  of  the  defendants,  they 
are  to  be  regarded  as  common  carriers,  and,  in  the  absence  of  stipula- 
tions to  the  contrary,  subject  to  all  the  legal  responsibilities  of  such 
carriers." 

And  then  proceeded  to  shovr  that  they  could  not  avail  themselves  of 
the  exemption  claimed  by  virtue  of  the  clauses  in  the  contract.  The 
whole  argument  of  the  opinion  proceeds  upon  the  assumption  that  the 
common-law  rule  in  respect  to  common  carriers  controlled. 

Reference  may  also  be  made  to  the  elaborate  opinion  of  District 
Judge  Shiras,  holding  the  Circuit  Court  in  the  Northern  District  of 
Iowa,  in  Murray  v.  Chicago  &  Northwestern  Railway,  62  Fed.  Rep.  24, 
in  which  is  collated  a  number  of  extracts  from  opinions  of  this  court, 
all  tending  to  show  recognition  of  a  general  common  law  existing 
throughout  the  United  States,  not,  it  is  true,  as  a  body  of  law  distinct 
from  tlie  comuion  law  enforced  in  the  States,  but  as  containing  the 
general  rules  and  princi[)les  by  which  all  transactions  are  controlled, 
except  so  far  as  those  rules  and  principles  are  set  aside  by  express 
statute.  It  would  serve  no  good  [)urpose  to  here  repeat  those  quota- 
tions ;  it  is  enough  to  refer  to  tiie  o[)inion  in  which  they  are  collated. 

It  is  further  iusisted  that  even  if  there  be  a  law  wliicli  controls  there 
is  no  evidence  of  discrimination  such  as  would  entitle  the  plaintiff  to 
the  verdict  which  it  obtaiiic(l.  But  there  was  testimony  tending  to 
show  the  conditions  luidcr  whicli  the  services  were  rendercMl  to  the  twf) 
puhhshing  com[)aui(;.s,  and  it  was  a  question  of  fact  whether,  upon  the 
differences   thus   shown,    there   was    an    unjust    discrimination.      And 


132  HAVEN   V.    FOSTEK.  [CHAP.  I. 

questions  of  fact,  as  has  been  repoatedl}'  held,  when  once  settled  in 
the  courts  of  a  State,  are  not  subject  to  review  in  this  court.  Dower 
V.  Richards,  151  U.  S.  658;  Egan  v.  Hart,  165  U.  S.  188;  Chicago, 
Burlington,  etc.  Railroad  v.  Chicago,  166  U.  S.  226-242  ;  Hedrick  v. 
Atchison,  Topeka  &  Santa  Fe  Railroad,  167  U.  S.  673,  677  ;  Gard- 
ner c.  Bonestell,  180  U.  S.  362. 

These  are  the  only  questions  of  a  federal  nature  which  are  pre- 
sented b\-  the  record,  and  finding  no  error  in  them  the  judgment  of 
the  Supreme  Court  of  Nebraska  is 

Affirmed. 


SECTION   IV. 

THE    NATURE    OF    FOREIGN   LAW. 


HAVEN   V.  FOSTER. 
Supreme  Judicial  Court  of  Massachusetts.    1829. 

[Reported  9  Pickering,  112.] 

Morton,  J.^  By  the  statute  of  distributions  of  this  State  these 
heirs,  standing  in  the  same  degree  of  relationship  to  the  intestate, 
inherited  his  estate  in  equal  proportions.  But  by  the  statute  of  New 
York,  which  carries  the  doctrine  of  representation  farther  than  the 
law  of  this  State,  or,  indeed,  than  the  civil  or  common  law,  these 
heirs  inherited  jyer  sth-jjes  and  not  per  capita.  So  that  the  estate  in 
New  York  descended,  one  half  to  the  wife  of  the  plaintiff,  and  the 
other  half  to  the  defendant  and  his  two  brothers;  being  one  si:5;th 
instead  of  one  quarter  to  each. 

Of  the  provisions  and  even  existence  of  this  statute,  all  the  heirs 
were  entirely  ignorant  during  the  whole  of  the  transactions  stated  in 
the  case.  The  plaintiff  having  discovered  the  mistake,  now  seeks 
by  this  action  to  reclaim,  of  the  defendant  one  third  of  the  amount 
received  by  him  on  account  of  the  sale  of  the  New  York  lands,  with 
interest  from  the  time  of  its  receipt.  And  the  question  now  sub- 
mitted to  our  decision  is,  whether  he  is  entitled  to  a  repetition  of  the 
whole  or  any  part  of  this  amount. 

Had  the  parties  been  informed  of  their  respective  rights  under  the 
laws  of  New  York,  it  cannot  be  doubted  that  the  plaintiff  would  have 
retained  one  moiety  of  the  land  in  that  State,  or  would  have  received 
to  himself  one  half  of  the  consideration  for  which  it  was  sold.     The 

1  The  statement  of  facts,  arguments  of  counsel,  and  parts  of  the  opinion  involving 
other  questions,  are  omitted.  —  Ed. 


SECT.  IV.]  HAVEN   V.    FOSTER.  133 

disitribution  of  the  avails  of  the  sale  was  made  by  the  heirs  upon  the 
confident  though  mistaken  supposition,  that  they  were  equally  entitled 
to  them.  They  acted  in  good  faith,  upon  a  full  conviction  that  they 
were  equal  owners  of  the  estate.  It  turned  out,  however,  to  the  sur- 
prise of  all  of  them,  that  they  owned  the  estate  in  very  unequal 
proportions,  and  that  the  defendant  and  his  brothers  had  received  not 
only  the  price  of  their  own  estate,  but  also  the  price  of  a  part  of  the 
plaintiff's  estate. 

F:qnity  would  therefore  seem  to  require,  that  the  defendant  should 
restore  to  the  plaintiff  the  amount  received  for  the  plaintiff's  estate. 
It  was  received  by  mistake,  and  but  for  the  mistake  would  not  have 
come  to  the  defendant's  hands.  If  the  whole  estate  had  been  owned 
by  the  plaintiff,  and  the  defendant,  having  no  interest  in  it,  had 
received  the  whole  consideration,  the  equitable  right  of  repetition 
wotuld  have  been  no  stronger;  it  might  have  been  more  manifest.  .  .  . 

That  a  mistake  in  fact  is  a  ground  of  repetition  is  too  clear  and 
too  well  settled  to  require  argument  or  authority  in  its  support. 

The  misapprehension  or  ignorance  of  the  parties  to  this  suit 
related  to  a  statute  of  the  State  of  New  York.  Is  this,  in  the  pres- 
ent question,  to  be  considered /('f^  or  laxo? 

The  existence  of  any  foreign  law  must  be  proved  by  evidence 
showing  what  it  is.  And  there  is  no  legal  presumption  that  the  law 
of  a  foreign  State  is  the  same  as  it  is  here.  2  Stark.  Ev.  (Met- 
calf's  ed.),  568;  Male  v.  Roberts,  3  i:sp.  Rep.  163.  If  a  foreign  law 
is  unwritten,  it  may  be  proved  by  parol  evidence;  but  if  written, 
it  must  be  proved  by  documentary  evidence.  Kenny  v.  Clarkson, 
1  Johns.  R.  385;  Frith  v.  Sprague,  14  Mass.  R.  455;  Consequa  v. 
Willings,  1  Peters' s  C.  C.  R.  229.  The  laws  of  other  States  in  the 
Union  are  in  these  respects  foreign  laws.  Raynham  v.  Canton, 
3  Pick.  293. 

The  courts  of  this  State  are  not  presumed  to  know  the  laws  of 
other  States  or  foreign  nations,  nor  can  they  take  judicial  cogni- 
zance of  them,  till  they  are  legally  proved  before  them.  But  when 
established  by  legal  proof,  they  are  to  be  construed  by  the  same 
rules  and  to  have  the  same  effect  upon  all  subjects  coming  within 
their  operation,  as  the  laws  of  this  State. 

That  the  lex  lod  rn  slice  must  govern  the  descent  of  real  estate, 
is  a  principle  of  our  law,  with  which  every  one  is  presumed  to  be 
acquainted.  But  what  the  /fx  loci  is,  the  court  can  only  learn  from 
proof  adduced  before  them.  The  parties  knew,  in  fact,  that  the 
intestate  died  seised  of  estate  situated  in  the  State  of  New  York. 
They  must  bo  presuuied  to  know  that  the  distribution  of  that  estate 
must  be  governed  by  the  laws  of  New  York.  But  are  they  bound,  on 
their  peril,  to  know  what  the  provisions  of  these  laws  are?  If  the 
judicial  tribunals  are  not  presumed  to  know,  why  should  private 
(citizens  be?  If  they  are  to  Ite  made  known  to  the  court  by  proof, 
like  other  facts,  wliy  sliould  not  ignorance  of  them  by  private  indi- 


134  KLINE    V.    BAKER.  [CIIAP.  1 

viduals  have  the  same  effect  upon  their  acts  as  ignorance  of  other 
facts?  Juris  hjnorantia  est,  cum  Jus  nostrum  ignoramus,  and  does 
not  extend  to  foreign  laws  or  the  statutes  of  other  States. 

We  are  of  opinion,  that  in  relation  to  the  question  now  before  us, 
the  statute  of  New  York  is  to  be  considered  as  a  fact,  the  ignorance 
of  which  may  be  ground  of  repetition.  And  whether  ignorantia  legis 
furnishes  a  similar  ground  of  repetition,  either  by  the  civil  law,  the 
law  of  England,  or  the  law  of  this  commonwealth,  it  is  not  necessary 
for  us  to  determine. 


KLINE  V.  BAKER. 

Supreme  Judicial  Court  of  Massachusjetts.    1868. 

[Reported  99  Massachusetts  Reports,  253.] 

Gray.  J.  This  action  of  replevin  is  brought  by  the  seller  of  intoxi- 
cating liquors  against  a  deputy  sheriff  attaching  the  same  as  the  prop- 
erty of  the  purchaser.  The  plaintiff  contends  that  the  sales  were 
induced  by  fraud  of  the  purchaser  and  therefore  passed  no  title  to  him  ; 
and  the  burden  of  proving  this  proposition  is  upon  the  plaintiff. 

The  seller  resided  in  Pennsylvania,  and  the  purchaser  in  Illinois. 
The  goods  were  sold  in  two  lots,  one  in  June  and  the  other  in  August, 
1865,  upon  distinct  orders  sent  by  the  purchaser  to  the  seller.  Al- 
though the  first  order  was  in  accordance  with  terms  of  sale  agreed  on 
between  the  agents  of  the  parties  in  Illinois,  neither  sale  was  complete 
until  delivery  of  the  goods.  That  delivery  in  each  case  was  made  to  a 
railroad  corporation  in  Philadelphia,  which,  in  the  absence  of  any 
ao-reeinent  between  the  parties  to  the  contrary,  was  in  law  a  delivery  to 
the  purchaser.  Each  contract  of  sale  therefore  was  completed  in  Penn- 
sylvania, and  its  validity  must  be  governed  by  the  laws  of  that  State. 
Orcutt  V.  Nelson,  1  Gray,  536;  Finch  v.  Mansfield,  97  Mass.  89:  2 
Kent  Com.  (6th  ed.)  458. 

The  laws  of  another  State  are  not  laws  of  this  Commonwealth,  which 
our  citizens  are  bound  to  know,  or  of  which  our  courts  have  judicial 
knowledge ;  but  they  are  facts,  of  which  both  citizens  and  courts  must 
be  informed  as  of  other  facts.  As  foreign  laws  can  only  be  known  so 
far  as  they  are  proved,  no  evidence  of  them  can  be  admitted  at  the 
aro-ument  before  this  court,  which  was  not  offered  at  the  trial  or  other- 
wise made  part  of  the  case  reserved.  Knapp  v.  Abell,  10  Allen,  485  ; 
Bowditch  V.  Soltyk.  99  Mass.  138.  When  the  evidence  consists  of  the 
parol  testimony  of  experts  as  to  the  existence  or  prevailing  construc- 
tion of  a  statute,  or  as  to  any  point  of  unwritten  law,  the  jury  must 
determine  what  the  foreign  law  is,  as  in  the  case  of  any  controverted 
fact  depending  upon  like  testimony.  Holman  v.  King,  7  Met.  384  ; 
Dyer  u.  Smith,  12  Conn.  384  ;  Moore  r.  Gwynn,  5   Ired.   187  ;  Ingra- 


SECT.  TV.]  KLINE   V.    BAKER.  135 

ham  r.  Hart,  11  Ohio,  255.  But  the  qualifications  of  the  experts,  or 
other  questions  of  competency  of  witnesses  or  evidence,  must  be  passed 
upon  by  the  court ;  and  when  the  evidence  admitted  consists  entirely 
of  a  written  document,  statute,  or  judicial  opinion,  the  question  of  its 
construction  and  effect  is  for  the  court  alone.  Church  v.  Hubbart,  2 
Cranch,  187  ;  Ennis  v.  Smith,  14  How.  400  ;  Owen  v.  Boyle,  15  Maine, 
147  ;  State  v.  Jackson,  2  Dev.  5G3  ;  People  v.  Lambert,  5  Mich.  349  ; 
Bremer  v.  Freeman,  10  Moore  P.  C.  306;  Di  Sora  v.  PhiUipps,  10 
H.  L.  Gas.  624.  And  if  the  evidence  is  uncontradicted,  and  will  not 
support  the  action,  it  is  the  duty  of  the  court  so  to  instruct  the  jury. 

By  the  law  of  :Massachusetts,  purchasing  goods  with  an  intention 
not  to  pav  for  them  is  of  itself  a  fraud  which  will  render  the  sale  void 
and  entitle  the  seller  to  reclaim  the  goods.  Dow  v.  Sanborn,  3  Allen, 
181.  The  only  evidence,  introduced  at  the  trial,  of  the  law  of  Penn- 
sylvania  upon  this  subject  was  the  cases  of  Smith  v.  Smith,  21  Penn. 
State,  317,  and  Backentoss  v.  Speicher,  31  Penn.  State,  324,  as  pub- 
lished in  the  official  reports,  by  which  it  appears  that,  in  the  opinion  of 
the  Supreme  Court  of  that  State,  tliere  must  be  '^  artifice,  intended  and 
fitted  to  deceive,  practised  by  the  buyer  upon  the  seller,"  in  order  to 
constitute  such  a  fraud  as  will  make  the  sale  void  ;  and  that  the  buy- 
er's intention  not  to  pay  for  the  goods  and  concealment  of  his  own 
insolvency  is  not  such  a  fraud.  These  reports  were  competent,  and,  in 
the  absence  of  all  other  evidence,  conclusive  proof,  of  the  law  of  Penn- 
sylvania. Gen.  Sts.  c.  131,  §  64.  Penobscot  &  Kenebec  Railroad  Co. 
V.  Bartlett,  12  Gray,  244. 

But  the  plaintiff  introduced  ca  idence  that  Burleigh,  who  was  either  a 
partner  or  the  manager  of  the  business  of  Dore,  the  purchaser,  represented 
to  Sheble,  the  agent  of  the  plaintiff,  at  the  time  of  negotiating  with  him 
for  the  purchase  of  the  first  lot  of  liquors,  and  within  ten  days  before 
sending  the  order  for  them  to  Philadelphia,  that  Dore  had  a  farm  worth 
ten  thousand  dollars,  and  other  means  amply  sufficient  to  carry  on  his 
business,  and  that  he  always  purchased  for  cash  and  did  not  owe  any 
man  ;  and  that  these  representations  were  false.  This  was  clearly  suf- 
ficient evidence  of  fraudulent  representations  intended  to  induce  and  in 
fact  inducing  the  plaintiff  to  sell  to  Dore,  or,  in  the  language  of  the 
Supreme  Court  of  Pennsylvania,  "  artifice,  intended  and  fitted  to  de- 
ceive, practised  by  the  buyer  upon  tlue  seller,"  to  warrant  a  jury  in 
finding  that  the  purchase  made  immediately  afterwards  on  a  credit  of 
sixty  days,  as  well  as  the  subsequent  purchase  made  before  that  credit 
had  expired,  was  fraudulent  and  passed  no  title.  The  learned  judge 
therefore  erred  in  ruling  that  upon  the  evidence  the  plaintiff  could  not 
recover,  and  in  directing  a  verdict  for  the  defendant.  Nichols  r.  Pin- 
ner, 18  N.  Y.  295,  and  23  N.  Y.  264  ;  Hall  o.  Naylor,  18  N.  Y.  588  ; 
Reenie  v.  Parthemere,  8  Penn.  State,  460 ;  Seaver  v.  Dingley,  4  Greenl. 

306 ;  Wiggin  v.  Day,  9  Gray,  97.  ^         .  ,   .     ■, 

MJxceptions  sustaxnea. 


136  FOREPAUGH    V.   D.    L.    &    W,    RAILROAD    CO.  [CIIAP. 


Story,  J.,  in  Owings  v.  Hull,  9  Pet.  607  (1835).  [In  error  to  the 
Circuit  Court  for  the  District  of  Maryland.]  We  are  of  opinion  that 
the  Circuit  Court  was  bound  to  take  judicial  notice  of  the  laws  ol 
Louisiana.  The  Circuit  Courts  of  the  United  States  are  created  by 
Congress,  not  for  the  purpose  of  administering  the  local  law  of  a  single 
State  alone,  but  to  administer  the  laws  of  all  the  States  in  the  Union 
in  cases  to  which  they  respectively  apply.  The  judicial  power  con- 
ferred on  the  general  government  by  the  Constitution  extends  to  many 
cases  arising  under  the  laws  of  the  different  States.  And  this  court  is 
called  upon,  in  the  exercise  of  its  appellate  jurisdiction,  constantly  to 
take  notice  of  and  administer  the  jurisprudence  of  all  the  States.  That 
jurisprudence  is,  then,  in  no  just  sense,  a  foreign  jurisprudence,  to  be 
proved,  in  the  courts  of  the  United  States,  by  the  ordinary  modes  of 
proof  by  which  the  laws  of  a  foreign  country  are  to  be  established  ; 
but  it  is  to  be  judicially  taken  notice  of  in  th6  same  manner  as  the  laws 
of  the  United  States  are  taken  notice  of  by  these  courts. 


Bradley,  J.,  in  United  States  v.  Perot,  98  U  S.  428  (1879).  We 
are  bound  to  take  judicial  notice  that  the  Mexican  league  was  not  the 
same  as  the  American  league.  The  laws  of  Mexico,  of  force  in  Texas 
previous  to  the  Texan  Revolution,  were  the  laws  not  of  a  foreign,  but 
of  an  antecedent  government,  to  which  the  Government  of  the  United 
States,  through  the  medium  of  the  Republic  of  Texas,  is  the  direct 
successor.  Its  laws  are  not  deemed  foreign  laws  ;  for  as  to  that  por- 
tion of  our  territory  they  are  domestic  laws  ;  and  we  take  judicial 
notice  of  them.     Fremont  v.  U.  S.,  17  How.  542,  557. 


FOREPAUGH  v.   DELAWARE,  LACKAWANNA  &  WESTERN 

RAILROAD  CO. 

Supreme  Court  of  Pennsylvania.     1889. 

[Reported  128  Pennsylvania  State  Reports,  217.] 

Mitchell,  J.  Plaintiff,  being  the  proprietor  of  a  circus,  made  a 
special  contract  with  defendant  for  the  transportation  of  a  number  of 
his  own  cars,  upon  certain  conditions  and  terms  elaborately  set  out  in 
writing,  among  which  was  a  stipulation  that,  in  consideration  that  the 
service  was  to  be  performed  "  for  much  less  than  the  ordinary,  usual, 
and  legal  rates  charged  other  parties  for  a  like  amount  of  transporta- 
tion," the  plaintiff  released  the  defendant  from  all  liability  for  or  on 
account  of  loss,  damage,  or  injury  to  any  of  the  animals,  property,  or 
things  thus  transported,  "  although  such  loss,  damage,  or  injury  may 


SECT.  IV.]  FOREPAUGH   V.   D.    L.    &   W.    RAILROAD   CO.  137 

be  caused  b}'  the  negligence  of  the  [defendant],  its  agents  or  em- 
ployes." Damage  having  occurred  by  the  negligence  of  defendant, 
plaintiff  brought  this  suit,  and  the  sole  question  before  us  is  whether  it 
can  be  maintained  in  tlie  face  of  the  stipulation  above  set  forth. 

The  contract  was  made,  was  to  be  performed,  and  the  alleged  breach 
occurred,  in  New  York.  No  possible  element  was  wanting,  therefore, 
to  make  it  a  New  York  contract.  It  is  admitted  that  in  New  York  the 
stipulation  is  valid,  and  this  action  could  not  be  maintained.  Cragin  v. 
Railroad  Co.,  51  N.  Y.  61;  Mynard  v.  Railroad  Co.,  71  N.  Y.  180; 
Wilson  V.  Railroad  Co.,  97  X.  Y.  87.  Why,  then,  should  plaintiff,  by 
stepping  across  the  boundary  into  Pennsylvania,  acquire  rights  which 
he  has  not  paid  for,  and  his  contract  does  not  give  him  ? 

It  is  argued  that  the  validity  of  this  contract  is  a  question  of  com- 
mercial law,  and  therefore  the  mere  decisions  of  the  New  York  courts 
are   not  binding ;  and,  in   the  absence  of  any   statute  in  New  York 
expressly  authorizing  such  a  contract,  the  courts  of  this  State   must 
follow  their  own  views  of  the  commercial  as  part  of  the  general  com- 
mon law,  though  different  views  may  be  held  as  to  such  law  by  the 
courts  of  New  York.     This  is  the  main  argument  of  the  plaintiff,  and, 
as  it  is  one  which  is  frequently  advanced,  and  affects  a  number  of 
important  questions,  it  is  time  to  say  plainly  that  it  rests  upon  an 
utterly  inadmissible  and  untenable  basis.     There  is  no  such  thing  as  a 
general  commercial  or  general  common  law,  separate  from,  and  irrespec- 
tive of,  a  particular  State  or  government  whose  authority  makes  it  law. 
Law  is  defined  as  a  rule  prescribed  by  the  sovereign  power.     By  whom 
is  a  general  commercial  law  prescribed,  and  what  tribunal  has  autliority 
or  recognition  to  declare  or  enforce  it,  outside  of  the  local  jurisdiction 
of  the  government  it  represents?     Even  the  law  of  nations,  the  widest 
reaching  of  all,  is  a  law  only  in  name.     It  has  but  a  moral  sanction, 
and  the  only  tribunal  that  undertakes  to  enforce  it  is  the  armed  hand, 
the  ultima  ratio  regum.     The  so-called  commercial  law  is  likewise  a 
law  only  in  name.     Upon  many  questions  arising  in  the  business  deal- 
ino-s  of  men,  the  laws  of  modern  civilized  States  are  substantially  the 
same;  and  it  is  therefore  common  to  say  that  such  is  the  commercial 
law,  but,  except  as  a  convenient  phrase,  such  general  law  does  not 
exist.     There  must  be  a  State  or  government,  of  which  every  law  can 
lie  predicated,  and  to  whose  authority  it  owes  its  existence  as  law. 
Without  such  sanction,  it  is  not  law  at  all ;  with  such  sanction,  it  is 
law  without  reference  to  its  origin,  or  the  concurrence  of  otlier  States 
or  people.     Such  sanction  it  is  the  prerogative  of  the  courts  of  each 
State  themselves  to  declare.     Their  jurisdiction  is  final  and  exclusive, 
and  in  this  respect  there  is  no  distinction  between  statute  and  common 
law.     It  is  universally  conceded  that,  as  to  statutes,  the  decisions  of 
the  State  courts  are  binding  iii)on  all  other  tribunals,  yet  such  decisions 
have  no  higher  sanction  than  those  upon  the  common  law  ;   for  what 
the  latter  determine,  equally  with  the  former,  is  the  law  of  the  particu- 
lar   State.     The    law   of    Pennsylvania  consists   of   the  Constitution. 


138  FOREPAUGH    V.    D.    L.    &   W.   RAILKOAD   CO.  [CIIAP.  I. 

treaties,  and  statutes  of  the  United  States,  the  Constitution  and 
statutes  of  this  State,  and  the  common  law,  not  of  any  or  all  other 
countries,  but  of  Pennsylvania.  There  is  a  common  law  of  England, 
and  a  common  law  of  Pennsylvania  mainly  founded  thereon,  but  with 
certain  differences  ;  and  the  only  tribunal  competent  to  pass  authorita- 
tively on  such  differences  is  a  Penns^ivania  court.  To  take  a  familiar 
illustration  :  In  the  United  States  the  universal  doctrine  has  always 
been  that  the  English  colonists  brought  with  them,  and  made  part  of 
their  laws,  all  the  common  law  of  England  that  was  not  unsuited  to 
their  new  situation.  No  part  of  the  common  law  of  England  is  better 
settled  than  the  doctrine  of  ancient  lights.  The  Court  of  Chanceiy  of 
New  Jersey,  in  Robeson  v.  Pittenger,  2  N.  J.  Eq.  57  (1838),  held 
that  the  same  doctrine  was  part  of  the  common  law  of  New  Jerse3\ 
The  Supreme  Court  of  Pennsylvania,  on  the  other  hand,  starting  with 
the  same  premises,  and  reasoning  on  the  same  principles  but,  proceed- 
ing cautiously  from  the  dictum  of  Rogers,  J.,  in  Hoy  v.  Sterrett, 
2  Watts,  331  (1834),  to  the  unanimous  decision  of  the  court  in 
Haverstick  v.  Sipe,  33  Pa.  St.  368  (1859),  held  that  the  doctrine 
of  ancient  lights  by  prescription  was  not  part  of  the  common  law  of 
Pennsylvania.  No  tribunals  of  any  other  State  presume  to  question 
that  the  common  law  of  New  Jersey  and  the  common  law  of  Penn- 
sylvania differ  on  this  point.  What  is  law  in  one  State  is  not  law  in 
the  other,  not  because  it  was  or  was  not  the  common  law  of  England, 
but  because  it  is  or  is  not  the  law  of  the  respective  States  ;  and,  though 
it  rests  only  on  the  decisions  of  the  courts,  it  is  none  the  less  absolutely 
and  indisputably  the  law,  than  if  it  had  been  made  so  by  statute.  I 
have  purposely  selected  an  illustration  from  the  law  relating  to  real 
estate,  because,  if  I  took  one  from  the  commercial  law,  it  might  seem 
like  assuming  the  very  question  under  discussion.  But  the  example  is 
none  the  less  pertinent.  The  point  is  the  force  of  judicial  decisions  on 
the  common  law,  and  the  assumption  that  there  is  an}'  tenable  basis  for 
holding  them  less  binding  upon  such  law  than  upon  statutes.  The  so- 
called  commercial  law  derives  all  its  force  from  its  adoption  as  part  of 
the  common  law,  and  a  decision  on  the  commercial  law  of  a  State 
stands  upon  precisely  the  same  basis  as  a  decision  upon  anj'  other 
branch  of  the  common  law.  Tiie  only  ground  upon  which  any  foreign 
tribunal  can  question  either  is  that  it  does  not  agree  with  the  premises 
or  the  reasoning  of  the  court.  But  the  same  ground  would  enable  it  to 
question  a  decision  upon  a  statute  because  a  different  construction 
seemed  to  it  nearer  the  true  intent  of  the  legislative  language,  and  this, 
it  is  universall}-  conceded,  no  foreign  court  can  do.  There  is  no  differ- 
ence in  principle.  The  decisions  of  a  State  court,  upon  its  common 
law  and  on  its  statutes,  must  stand  unquestioned,  because  it  is  the 
only  authorit}'  competent  to  decide  ;  or  the}'  must  be  alike  question- 
able by  any  tribunal  which  may  choose  to  differ  with  its  reasons  or 
its  conclusions. 

It  is  not  probable  that  the  doctrine  of  such  a  distinction  would  ever 
have  got  a  footholil  in  jurisprudence,  and  it  would  certainl}'  have  been 


SECT.  lY.]  FOREPAUGH    V.   D.    L.    &   W.    RAILROAD    CO.  139 

long  ago  abandoned,  had  it  not  been  for  the  nnfortunate  misstep  that 
was  made  in  the  opinion  in  Swift  v.  Tyson,  IG  Pet.  1.     Since  then  the 
courts  of   the  United   States    have    persisted  in  the  recognition  of  a 
mythical  commercial  law,  and  have  professed  to  decide  so-called  com- 
mercial  questions    by  it,  in  entire  disregard  of  the  law  of  the  State 
where  the  question  arose.     It  is  argued  now  that,  as  to  such  questions, 
the  State  courts  also  have  similar  liberty.     It  would  be  sufficient  an- 
swer  to  this  argument  that  such  a  course,  by  reading  into  a  contract  a 
new  duty  not  in  contemplation  of  the  parties,  and  not  part  of  it  by 
the  law  of  the  place  where  it  is  made,  is,  in  principle  and  in  practical 
effect,  impairing  the  obligation  of  the  contract,  which  even  the  sover- 
eign  power  of  a  State  is   prohibited  from  doing.     But  we  prefer  to 
rest  the  matter  on  the  broader  ground  that  the  doctrine  itself  is  un- 
sound.    The  best  professional  opinion  has  long  regarded  it  as  indefen- 
sible on  principle,  and  is  thus  very  recently  summed  up  by  the  most 
learned  of  living  jurists:  "  Questions  growing  out  of  contracts  made 
and  to  be  performed  in  a  State  are  decided  by  the  national  court  of  last 
icsort,  not  in  accordance  with  the  unwritten  or  customary  law  of  the 
State  where  they  originated,  as  expounded  by  its  courts,  but  agreeably 
to  some  theoretic  view  of  a  general  commercial  law,  which  does  not 
exist,  and  is  not  to  be  found  in  the  books.     The  State  courts,  on  the 
other  hand,  adhere  to  their  own  precedents,  and  do  not  consider  them- 
selves entitled    to  impair  the  obligation  of  contracts  that  have  been 
made  in  reliance  on  the  principles  which  they  have  laid  down  through 
a  long  series  of  years.     The  result  is  a  conflict  of  jurisdiction  which 
there  are  no  means  of  allaying.  .  .  .  Whether  a  recovery  shall  be  had 
on  a  promissory  note  which  has  been  taken  as  collateral  security  for  an 
antecedent  debt  against  a  maker  from  whom  it  was  obtained  by  fraud, 
is  thus  made  to  turn  in  New  York,  Pennsylvania,  and  Ohio,  not  on  any 
settled  rule,  but  on  the  tribunal  by  which  the  cause  is  heard  ;  and,  if 
that  is  federal,  the  plaintiff  will  prevail ;  if  it  is  local,  the  defendant. 
Such  a  result  tends  to  discredit  the  law.   .  .  .  The  enumeration  mio-ht 
be  carried  further,  but  enough  has,  perhaps,  been  said  to  show  that  no 
uniform  rule  can  be  deduced  from  the  decisions  of  the  English  and 
American  courts  under  the   commercial   law,   and   that  the  certainty 
requisite  to  justice  can  be  obtained  only  by  following  the  local  tribunals 
as  regards  the  contracts  made  in  each  locality.     The  several  States  of 
this  country  are  collectively  one  nation,  but  they  are  as  self-governing 
in  all  that  concerns  their  purely  internal  commerce  as  if  the  general 
gcnernment  did  not  exist;  and  when  the  will  of  the  people  of  New 
York  or  Pennsylvania  is  declared  on  such  matters,  through  their  repre- 
sentatives in   the    local    legislatures,   expressly  or  l)y  long-continued 
acquiescence  in  tlic  rules  enunciated  by  their  judges,  it  cannot  be  set 
aside  by  Congress  short  of  an  amendment  of  the  Constitution.     Had 
tlie  New  York  legislature  declared  that  notes  made  and  negotiated  in 
that  State  should   follow   the  rule   laid  down   in   Coddington    /'.  Ray 
[20  .Johns.  037],  tlio  federal  tribunals  would   liave  been   lioiiud   to  c.-uTy 
It  into  effect,  notwithstanding  any  attempt  of  the  national   Icgishitiu-e 


140  FOREPAUGH   V.   D.    L.   &   W.    RAILROAD   CO.  [CHAP.  I. 

to  introduce  a  different  principle  ;  and  it  is  inconceivable  that  the 
judicial  department  of  the  government  can  exercise  a  greater  authority 
in  this  regard  than  the  legislature."  Hare,  Const.  Law,  1107,  1117, 
and  see  Lecture  51,  passim. 

We  conclude,   therefore,    that  the  distinction  between  the   binding 
effect   of    decisions   on    commercial   law    and   on    statutes   is  utterly 
untenable ;  that  the  law  declared   by  State  courts  to  govern  on  con- 
tracts made  within  their  jurisdiction  is  conclusive  everywhere  ;  and  the 
departure  made  by  the  United   States  courts  is  to  be  regretted,  and 
certainly  not  to  be  followed.     In  entire  accordance  with  this  view  are 
our  own  cases  of  Brown  v.  Railroad  Co.,  83  Pa.  St.  316,  and  Brooke 
V.  Railroad  Co.,  108  Pa.  St.  530,  1   Atl.  Rep.   206  ;  and  the  decisions 
in  Ohio  :  Knowlton  v.  Railway  Co.,  19  Ohio  St.  260  ;  in  Illinois  :  Penn- 
sylvania Co.  V.  Fairchild,  69  111.  260  ;  Railroad  Co.  v.  Smith,  74  111. 
197  ;  in  Iowa:  Talbott  v.  Transportation  Co.,  41  Iowa.  247  ;  Robinson 
f.  Transportation  Co.,  45  Iowa,  470;  in  Connecticut:   Hale  v.  Naviga- 
tion Co.,  15  Conn.  539;  in  Kansas:  Railroad  Co.  v.  Moore,  29  Kan. 
632  ;  in  South  Carolina :  Bridger  v.  Railroad  Co.,  27  S.  C.  462,  3  S.  E. 
Rep.  860  ;  in  Georgia  :  Railroad  Co.  v.  Tanner,  68  Ga.  390  ;  in  Missis- 
sippi :  McMaster  v.  Railroad  Co.,  65  Miss.  271,  4  South.  Rep.  59  ;  in 
Texas  :  Cantu  v.  Bennett,  39  Tex.  303  ;  Ryan  v.  Railway  Co.,  65  Tex. 
13,  and  perhaps    in  other  States.     I  will   not  notice  them  in  detail 
further  than  to  quote  the  terse  and  forcible  summary  made  by  Scott,  J., 
in  Knowlton  v   Railway  Co. :   ''  As  the  contract  was  made  within  the 
jurisdiction  of  New  York,  and  contemplated  no  action  outside  of  that 
jurisdiction,  it  is  clear  that  the  question  of  its  validity  must  be  deter- 
mined solely  by  the  laws  of  New  York.     The  rights  and  obligations  of 
the   parties  to  such  a  contract,  and  in  respect  to  the  manner  of  its 
execution,  cannot  be  affected   by  the  laws  or  policy  of  other  States. 
If  no  cause  of  action  arose  to  the  plaintiff  under  his  contract  when  the 
accident  occurred,  the  transaction  cannot  be  converted  into  a  cause  of 
action  by  the  fact  that  the  parties  have  subsequently  come  within  the 
jurisdiction  of  Ohio."      Holding,   therefore,   that  the  validity  of  this 
contract  is  to  be  determined  by  the  law  of  New  York,  as  decided  by 
the  courts  of  that  State,  is  there  any  reason  why  the  courts  of  this 
State    should    not  enforce  it?     Tlie  general    rule    is   that   courts   will 
enforce  contracts  valid   by  the  law  of  the  place   where  made,  unless 
they  are    injurious  to  the   interests   of  the    State,  or  of  its    citizens. 
Story,  Confl.  Laws,  §§  38,  244.     The  injury  may  be  indirect  by  offend- 
ino-  against  justice  or  morality,  or  by  tending  to  subvert  settled  public 
policy  (2  Kent,  Com.  458  ;  Greenwood  v.  Curtis,  6  Mass.  358  ;  Bliss 
V.  Brainard,  41  N.  H.  256)  ;  but  this  does  not  imply  that  courts  will 
not  sustain  contracts  that  would  not  be  valid  if  made  within  their  juris- 
diction, or  will  not  enforce  rights  that  could  not  be  acquired  there 
Thus,  for  example,  the  courts  of  Pennsylvania  have  always  enforced 
contracts  for  a  higher  rate  of  interest  than  would  be  valid  under  the 
laws  of  this  State.     Ralph  v.   Brown,   3   Watts  &   S.   395  ;  Wood  v. 
Kelso,  27  Pa.  St.  243  ;  Irvine  v.  Barrett,  2  Grant,  Cas.  73.     The  con- 


SECT.  IV.]  FOREPAUGH    V.    D.    L.    &   W.    RAILROAD   CO.  141 

tract  in  the  present  case  does  not  directly  affect  the  State  or  its  citizens 
in  any  way.  Nor  is  it  in  any  way  contrary  to  justice  or  morality.  It 
may  be  doubted  whether  it  is  even  so  far  contrary  to  the  policy  of  the 
State  that  it  would  have  been  invalid  if  it  had  been  made  here.  It 
has  some  exceptional  features,  which,  it  is  argued,  take  it  out  of  the 
ordinary  rules  governing  the  contracts  of  common  carriers  ;  and  the 
case  of  Coup  v.  Railroad  Co.,  56  Mich.  Ill,  22  N.  W.  Rep.  215,  is  a 
strona  authority  for  that  position.  But  without  stopping  to  discuss 
that  point,  which  our  general  view  renders  unnecessary,  it  is  sufficient 
to  say  that,  even  if  it  would  not  have  been  valid  if  made  here,  its 
enforcement  as  a  New  York  contract  does  not  in  any  way  derogate 
from  the  laws  of  Pennsylvania,  or  injure  or  affect  the  policy  of  the 
State,  anv  more  than  would  a  foreign  contract  for  what  would  be 
usurious  interest  here,  and  that,  as  already  said,  the  courts  have  never 
hesitated  to  enforce. 

The  argument  of  duress  mav  be  briefly  dismissed  for  want  of  any 
evidence  Tn  the  case  to  sustain  it.  There  is  no  evidence  that  defend- 
ant was  unwilling  to  accept  the  ordinary  and  usual  rates  for  the  trans- 
portation of  plaintiffs  cars  and  property.  If  they  had  been  offered  by 
plaintiff  and  refused,  there  might  have  been  some  ground  for  the 
present  argument,  though,  in  view  of  the  peculiar  nature  of  the 
property,  and  the  special  facilities  required,  even  that  is  far  from  cl(;ar. 
But  in  fact  plaintiff  got  a  large  reduction  of  rates,  and  part  of  the 
consideration  for  such  reduction  was  the  agreement  that  he  should  be 
his  own  insurer  against  loss  by  accident.  There  was  nothing  com- 
pulsory about  such  a  contract,  and  plaintiff  comes  now  with  a  very 
bad  grace  to  assert  a  right  that  he  expressly  relinquished  for  a  sub- 
stantial  consideration. 

The  learned  court  below  was  right  in  entering  judgment  for  the 
defendant  on  the  facts  found  in  the  special  verdict. 

Judgment  affirmed, 

Williams,  J.  {dissenting).  I  dissent  from  the  judgment  in  this  case 
because  I  cannot  agree  that  a  well-settled  rule  of  public  policy  of  this 
commonwealth  must  give  way  to  considerations  of  mere  comity.  The 
contract  set  up  as  a  defence  to  this  action  is  a  release  to  a  common 
carrier  from  liability  for  its  own  negligence.  It  is  well  settled  in  this 
State  that  such  a  release  is  against  public  policy.  Comity  does  not 
require  more  of  us  than  to  give  effect  to  the  lex  loci  contractiis,  when 
not  subversive  of  the  public  i)olicy  of  our  own  State.  This  has  been 
distinctly  held  by  the  Court  of  Appeals  of  Now  York,  in  which  this 
release  was  executed,  and  in  whose  behalf  comity  is  asked.  I  would 
follow  the  Court  of  Appeals,  because  comity  can  require  no  more  of 
us  in  any  given  case  than  the  courts  of  the  place  of  the  contract  would 
yield  to  us  for  comity's  sake,  and  because  I  believe  the  rule  to  rest  on 
Bolid  ground. 

Sterrett,  J.,  concurs  in  the  foregoing  dissent. 


142  ST.    NICHOLAS    BANK   V.    STATE   NATIONAL   BANK.       [CHAP.   L 


ST.   NICHOLAS   BANK  v.    STATE   NATIONAL  BANK 

Court  of  Appeals  of  Xew  Yokk.     1891. 
[Reported  128  New  York  Reports,  26.] 

Earl,  J.^  This  action  was  brought  to  recover  the  proceeds  of  a 
draft  for  $473.57  sent  for  collection  by  the  plaintiff  to  the  defendant, 
and  paid  to  the  defendant's  correspondents.  The  trial  resulted  in  the 
direction  of  a  verdict  for  the  plaintiff  for  the  amount  demanded. 
Upon  appeal  to  the  general  term,  the  judgment  entered  upon  the  ver- 
dict was  reversed,  and  a  new  trial  ordered.  From  the  order  of  reversal 
the  plaintiff  appealed  to  this  court.  .  .  . 

The  rule  has  long  been  established  in  this  State  that  a  bank  receiv- 
ing commercial  paper  for  collection,  in  the  absence  of  a  special  agree- 
ment, is  liable  for  a  loss  occasioned  b}'  the  default  of  its  correspondents 
or  other  agents  selected  by  it  to  effect  the  collection.  Allen  v.  Bank, 
22  Wend.  215  ;  Montgomery  County  Bank  v.  Albany  City  Bank,  7 
N.  Y.  459  ;  Commercial  Bank  v.  Union  Bank,  UN.  Y.  203  ;  Ayrault 
V.  Pacific  Bank,  47  N.  Y.  570  ;  Naser  v.  Bank,  116  N.  Y.  498,  22  N. 
E.  Rep.  1077.  And  the  same  rule  prevails  in  some  of  the  other 
States,  in  the  United  States  Supreme  Court,  and  in  England.  Titus  v. 
Bank,  35  N.  J.  Law,  588  ;  Wingate  v.  Bank,  10  Pa.  St.  104  ;  Reeves 
V.  Bank,  8  Ohio  St.  465  ;  Tyson  v.  Bank,  6  Blackf.  225  ;  Simpson 
V.  Waldby  (Mich.),  30  N.  W.  Rep.  199  ;  Mackersy  v.  Ramsays,  9 
Clark  &  F.  818.  In  such  a  case  the  collecting  bank  assumes  the 
obligation  to  collect  and  pay  over  or  remit  the  monej'  due  upon  the 
paper,  and  the  agents  it  employs  to  effect  the  collection,  whether  the}' 
be  in  its  own  banking-house  or  at  some  distant  place,  are  its  agents, 
and  in  no  sense  the  agents  of  the  owner  of  the  paper.  Because  the}- 
are  its  agents,  it  is  responsible  for  their  misconduct,  neglect,  or  other 
default.   .  .  . 

The  defendant,  however,  claims  that  the  contract  with  the  plaintiff 
is  to  be  treated  as  a  Tennessee  contract,  and  that  by  the  law  of  that 
State  it  cannot  be  made  liable  for  this  loss.  Upon  the  trial,  for  the 
purpose  of  showing  the  law  of  that  State,  it  put  in  evidence  a  decision 
of  the  Supreme  Court  in  the  case  of  Bank  of  Louisville  v.  First  Nat. 
Bank  of  Knoxville,  8  Baxt.  101.  .  .  .  That  decision  was  not  based  upon 
any  statute  law,  but  upon  the  principles  of  the  common  law,  supposed 
to  be  applicable  to  the  facts  of  the  case.  It  did  not  make  or  establish 
law,  but  expounded  the  law,  and  furnished  some  evidence  of  what  the 
law  applicable  to  that  case  was,  —  evidence  which  other  courts  might 
or  miglit  not  take  and  receive  as  reliable  and  sufficient ;  and  even  the 
same  court,  upon  fuller  discussion  and  more  mature  consideration, 
might,  in  some  subsequent  case,  refuse  to  take  the  same  view  of 
the  law.     There  is  no  common  law  peculiar  to  Tennessee.     But   the 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT,  v.]  BANK  OF  AUGUSTA  V.   EARLE.  1-13 

common  law  there  is  the  same  as  that  which  prevails  here  and  else- 
where, and  the  judicial  expositions  of  the  common  law  there  do  not 
bind  the  courts  here.  The  courts  of  this  State,  and  ot  other  States, 
and  of  the  United  States,  would  follow  the  courts  of  that  State  in  the 
construction  of  its  statute  law.  But  the  courts  of  this  State  will  follow 
it?  own  precedents  m  the  expounding  of  the  general  common  law  ap- 
plicable to  commercial  transactions,  and  so  it  has  been  repeatedly 
held.  Faulkner  v.  Hart,  82  N.  Y.  413  ;  Swift  v.  Tyson,  16  Pet.  1  ; 
Gates  V.  Bank,  100  U.  S.  239  ;  Ray  v.  Gas  Co.,  20  Atl.  Rep.  1065 
(decided  in  Pennsylvania  Supreme  Court,  Jan,  12,  1891).  We  must, 
therefore,  hold  that  the  obligation  resting  upon  the  defendant  was  that 
which  the  principles  of  the  common  law,  as  expressed  by  the  courts 
of  this  State,  placed  upon  it.  If  it  be  said  that  the  contract  between 
these  parties  was  made  in  view  of  the  common  law,  then  we  must  hold 
that  it  was  the  common  law  as  expounded  here. 

But  it  cannot  be  maintained  that  the  contract  between  these  parties 
was  a  Tennessee  contract.  It  is  by  no  means  clear,  even,  that  it  can 
be  held  that  the  contract  was  made  there.^  .  .  . 

Our  conclusion,  therefore,  is  that  the  order  of  the  general  term 
should  be  reversed,  and  the  judgment  entered  upon  the  verdict  affirmed 
with  costs.     All  concur. 


SECTION   V. 

COMITT. 


Marshall,  C.  J.,  in  The  Nereide,  9  Cr.  388,  422  (1815).  The 
court  is  decidedly  of  opinion  that  reciprocating  to  the  subjects  of  a 
nation,  or  retaliating  on  them  its  unjust  proceedings  towards  our  citi- 
zens, is  a  political,  not  a  legal  measure.  It  is  for  the  consideration 
of  the  government,  not  of  its  courts.  The  degree  and  kind  of  retalia- 
tion depend  entirely  on  considerations  foreign  to  this  tribunal.  It 
may  be  the  policy  of  tlie  nation  to  avenge  its  wrongs  in  a  manner 
having  no  affinity  to  the  injury  sustained,  or  it  may  be  its  policy  to 
recede  from  its  full  rights  and  not  to  avenge  them  at  all.  It  is  not 
for  its  courts  to  interfere  with  the  proceedings  of  the  nation  and  to 
thwart  its  views.  It  is  not  for  us  to  depart  from  the  beaten  track 
prescribed  for  us,  and  to  tread  the  devious  and  intricate  path  of 
politics. 


Taney,  C.  J.,  in  Bank  op  Augusta  v.  Earle,  13  Pet.  519,  589  (1839). 

It  is  needless  to  enumerate  here  tlic  instances  in  which,  by  the  general 

*  Th(i  court  foiiiid  that  the  coiitmct  was  not  a.  Tenncsseu  contract.  —  Eu. 


/44  HILTON    V.    GUYOT.  [CHAP.  I. 

practice  of  civilized  countries,  the  laws  of  the  one  will,  b}-  the  comity 
of  nations,  be  recognized  and  executed  in  another,  where  the  rights 
of  individuals  are  concerned.  .  .  .  The  comity  thus  extended  to 
other  nations  is  no  impeachment  of  sovereignty.  It  is  the  voluntar}' 
act  of  the  nation  by  which  it  is  otfered,  and  is  inadmissible  when  con- 
trar}'  to  its  polic}'  or  prejudicial  to  its  interests.  But  it  contributes 
so  largel}'  to  promote  justice  between  individuals,  and  to  produce  a 
friendly  intercourse  between  the  sovereignties  to  which  they  belong, 
that  courts  of  justice  have  continualh'  acted  upon  it,  as  a  part  of  the 
voluntary  law  of  nations.  It  is  truly  said  in  Story's  Conflict  of  Laws, 
37,  that  "  In  the  silence  of  any  positive  rule,  affirming,  or  denying,  or 
restraining  the  operation  of  foreign  laws,  courts  of  justice  presume 
the  tacit  adoption  of  them  by  their  own  government,  unless  they  are 
repugnant  to  its  policy,  or  prejudicial  to  its  interests.  It  is  not  the 
corait}'  of  the  courts,  but  the  comity  of  the  nation  which  is  adminis- 
tered, and  ascertained  in  the  same  way,  and  guided  b}'  the  same 
reasoning  b}'  which  all  other  principles  of  municipal  law  are  ascer- 
tained and  o;uided." 


Gray,  J.,  in  Hiltox  v.  Guyot,  159  U.  S.  113,  163  (1895).  No 
law  has  an}'  effect,  of  its  own  force,  be3-ond  the  limits  of  the  sover- 
eignty- from  which  its  authority  is  derived.  The  extent  to  which  the 
law  of  one  nation,  as  put  in  force  within  its  territorj-,  whether  by  execu- 
tive order,  by  legislative  act,  or  by  judicial  decree,  shall  be  allowed 
to  operate  witliin  the  dominion  of  another  nation,  depends  upon  what 
our  greatest  jurists  have  lieen  content  to  call  "  tlie  comity  of  nations." 
Although  the  phrase  has  been  often  criticised,  no  satisfactory  sub- 
stitute has  been  suggested. 

"  Comity,"  in  the  legal  sense,  is  neither  a  matter  of  absolute  obli- 
gation, on  the  one  hand,  nor  of  mere  courtesj'  and  good  will  upon  the 
other.  But  it  is  the  recognition  which  one  nation  allows  within  its 
territory  to  the  legislative,  executive,  or  judicial  acts  of  another  nation, 
having  due  regard  both  to  international  dut}-  and  convenience,  and 
to  the  rights  of  its  own  citizens,  or  of  other  persons  who  are  under 
the  protection  of  its  laws.^ 

1  See  the  dissenting  ofiinion  of  Fuller,  C.  J.,  in  the  same  case,  at  p.  233  ;  and 
Bee  further  Dicey  on  the  Conflict  of  Laws,  p.  10.  —  Ed. 


CHAPTER   11. 

JURISDICTION  OVER  PERSONS  AND  THINGS. 


SECTION   I. 

DOMICILE.' 


BELL  V.  KENNEDY. 

House  of  Lords.     1868. 

[Reported  Law  Reports,  1  House  of  Lords  (Scotch),  307.] 

The  Lord  Chancellor  (Lord  Cairns). ^  My  Lords,  this  appeal 
arises  in  an  action  commenced  in  the  Court  of  Session,  I  regret  to 
say  so  long  ago  as  the  year  1858;  in  the  course  of  which  action 
no  less  than  sixteen  interlocutors  have  been  pronounced  by  the 
court,  all,  or  the  greater  part  of  which,  become  inoperative  or  imma- 
terial if  your  Lordships  should  be  unable  to  concur  in  the  view  taken 
by  the  court  below  of  the  question  of  domicile. 

The  action  is  raised  by  Captain  Kennedy,  and  his  wife,  the 
daughter  of  the  late  Mrs.  Bell ;  and  the  defender  is  Mrs.  Kennedy's 
father,  the  husband  of  Mrs.  Bell.  The  claim  is  for  the  share,  said 
to  belong  to  Mrs.  Kennedy,  of  the  goods  held  in  communion  between 
Mr.  and  Mrs.  Bell.  This  claim  proceeds  on  the  allegation  that  the 
domicile  of  Mrs.  Bell,  at  the  time  of  her  death  on  the  28th  of  Sep- 
tember, 1838,  was  in  Scotland.  And  the  question  itself  of  her  domi- 
cile at  that  time  depends  upon  the  further  question,  what  was  the 
domicile  of  her  husband?  Her  husband,  the  appellant,  is  still 
living;  and  your  Lordships  have  therefore  to  consider  a  case  which 
seldom  arises,  the  question,  namely,  of  the  domicile  at  a  particular 
time  of  a  person  who  is  still  living. 

Mr.  Bell  was  })orn  in  the  island  of  Jamaica.  His  parents  had 
come  there  from  Scotland,  and  had  settled  in  the  island.  There 
appears  to  be  no  reason  to  doubt  but  that  they  were  domiciled  in 
Jamaica.     His  father  owned  and  cultivated  there  an  estate  called  the 

1  For  the  general  prininples  of  nationality  see  Calvin's  Case,  7  Co.  1:  U"  S  v  Wonc 
Kirn  Ark,  169  U.  S.  649.  —  Ed. 

2  The  statement  of  facts  is  omitted,  as  are  also  the  concurring  opiniciiis  of  Lords 
Oranwortii,  Chelmsford,  and  Colonsay.  —  En. 

in 


146  BELL    V.    KENNEDY.  [CHAP.  11. 

Woodstock  estate.  His  mother  died  when  the  appellant  was  about 
the  age  of  two  years,  and  immediately  after  his  mother's  death  he 
was  sent  to  Scotland  for  the  purpose  of  nurture  and  education.  By 
his  father's  relatives  he  was  educated  in  Scotland  at  school,  and  he 
afterwards  proceeded  to  college.  His  father  appears  to  have  died 
when  he  was  about  the  age  of  ten  years,  dying,  in  fact,  as  he  was 
coming  over  to  Great  Britain  for  his  health,  but  with  the  intention 
of  returning  to  Jamaica. 

The  appellant,  after  passing  through  college  in  Scotland,  travelled 
upon  the  Continent;  and  soon  after  he  attained  the  age  of  twenty-one 
years  he  went  out  again  to  Jamaica,  in  the  year  1823,  with  the  inten- 
tion of  carrying  on  the  cultivation  of  the  Woodstock  estate,  which, 
in  fact,  was  the  only  property  he  possessed.  He  cultivated  this 
estate  and  made  money  to  a  considerable  amount.  He  arrived  at  a 
position  of  some  distinction  in  the  island.  He  was  the  custos  of 
the  parish  of  St.  George,  and  was  a  member  of  the  Legislative 
Assembly.  He  married  his  late  wife,  then  Miss  Hosack,  in  Jamaica 
in  the  year  1828;  and  he  had  by  her,  in  Jamaica,  three  children. 

It  appears  to  me  to  be  beyond  the  possibility  of  doubt  that  the 
domicile  of  birth  of  Mr.  Bell  was  in  Jamaica,  and  that  the  domicile 
of  his  birth  continued  during  the  events  which  I  have  thus  described. 

In  the  year  1834  a  change  was  made  in  the  law  with  regard  to 
slavery  in  the  island  of  Jamaica,  which  introduced,  in  the  first 
instance,  a  system  of  apprenticeship,  maturing  in  the  year  1838  into 
a  complete  emancipation.  This  change  appears  to  have  been  looked 
upon  by  Mr.  Bell  with  considerable  disfavor,  and,  his  health  fail- 
ing, in  the  year  ^837  he  determined  to  leave  Jamaica,  and  to  return 
to  some  part,  at  all  events,  of  Great  Britain.  He  entered  into  a  con- 
tract for  the  sale  of  the  Woodstock  estate,  the  purchase-money  being 
made  payable  by  certain  instalments;  and  in  1837  he  left  the  island, 
to  use  his  own  expression,  "for  good."  He  abandoned  his  residence 
there  without  any  intention  at  that  time,  at  all  events,  of  returning 
to  the  island.  He  reached  London  in  the  month  of  June,  1837.  He 
remained  in  London  for  a  short  time,  apparently  about  ten  days,  and 
he  then  went  on  to  Edinburgh,  and  took  up  his  abode  under  the  roof 
of  the  mother  of  his  wife,  Mrs.  Hosack,  who  at  that  time  was  living 
in  Edinburgh. 

I  ought  to  have  stated  that  while  the  appellant  was  in  Jamaica  he 
appears  to  have  kept  up  a  correspondence  with  his  relatives  and 
friends  in  Scotland.  In  the  year  1833  he  acquired  (I  prefer  to  use 
the  term  "acquired  "  rather  than  the  word  "purchased  ")  the  estates 
of  Glengabers  and  Craka.  He  appears  to  have  taken  to  those  estates 
mainly  in  settlement  of  a  claim  for  some  fortune  or  money  of  his 
wife  secured  upon  them.  It  is  apparent,  however,  that  he  had  at  no 
time  any  intention  of  residing  upon  Glengabers,  and,  in  fact,  the 
acquisition  of  those  estates  bears  but  little,  in  my  opinion,  upon  the 
question  of  domicile,  because  in  1833,  when  he  acquired  them,  his 


SECT.  I.]  BELL    V.    KENNEDY.  147 

domicile,  beyond  all  doubt,  was,  and  for  some  years  afterwards  con- 
tinued to  be,  in  Jamaica. 

He  wrote  occasionally  at  that  time  from  Jamaica,  evincing  a  desire 
to  buy  an  estate  at  some  future  period  in  Scotland,  if  he  could  obtain 
one  to  his  liking,  and  even  an  intention,  if  he  could  obtain  such  an 
estate,  of  living  in  Scotland,  but  nothing  definite  appears  to  have 
been  arranged  or  said  upon  the  subject;  and,  in  fact,  at  this  time 
other  suggestions  as  to  other  localities  appear  to  have  been  occasion- 
ally entertained  and  considered  by  him. 

Jn  these  letters  he  frequently  uses  an  expression  that  was  much 
insisted  upon  at  the  bar  —  the  expression  of  "coming  home;"  but 
I  think  it  will"  be  your  Lordships'  opinion  that  the  argument  is  not 
much  advanced,  one  wa}'  or  the  other,  by  that  expression.  It  ap- 
pears to  me  to  be  obviously  a  form  of  language  that  would  naturally 
be  used  by  a  colonist  in  Jamaica  speaking  of  the  mother  countr}'  in 
contradistinction  to  the  colony. 

Up  to  this  point,  my  Lords,  there  is  real)}'  no  dispute  with  regard 
to  the  facts  of  the  case.  The  birth-domicile  of  the  appellant  in 
Jamaica  continued,  at  all  events  till  1837,  and  the  onus  lies  upon 
those  who  desire  to  show  that  there  was  a  change  in  this  domicile, 
by  which  I  mean  the  personal  status  indicated  by  that  word, — the 
onus,  I  say,  lies  upon  those  who  assert  that  the  personal  status  thus 
acquired,  and  continued  from  the  time  of  his  birth,  was  changed,  to 
prove  that  that  change  took  place.  The  law  is,  beyond  all  doubt, 
cl(!ar  with  regard  to  the  domicile  of  birth,  that  the  personal  status 
indicated  hy  that  term  clings  and  adheres  to  the  subject  of  it  until 
an  actual  change  is  made  by  which  the  personal  status  of  another 
domicile  is  acquired. 

I  do  not  think  it  will  be  necessary  to  examine  the  various  defini- 
tions which  have  been  given  of  the  term  "domicile."  The  question 
which  I  will  ask  your  Lordships  to  consider  in  the  present  case  is, 
in  substance,  this:  Whether  the  appellant,  before  the  28th  of  Sep- 
tember, 1838,  the  day  of  the  death  of  his  wife,  had  determined  to 
make,  and  had  made,  Scotland  his  home,  with  the  intention  of  estab- 
lisliing  himself  and  his  family  there,  and  ending  his  days  in  that 
country?  The  onus,  as  1  have  said,  is  upon  the  respondents  to 
establish  this  proposition. 

I  will  ask  your  Lordships,  in  the  first  place,  to  look  at  the  facts 
subsequent  to  the  return  of  the  appellant  to  Scotland,  ns  to  which 
there  is  no  dispute,  then  at  the  character  of  the  parol  evidence  wliich 
has  been  adduced,  and,  finally,  at  a  few  passages  in  the  correspond- 
ence which  is  in  evidence. 

As  regards  the  facts  which  are  admitted,  they  amount  to  this: 
The  appellant  lived  under  the  roof  of  Mrs.  Ilosack  from  the  time  of 
his  arrival  in  Edinburgh,  in  the  year  Is.'i7,  until  the  1st  of  June, 
1838.  He  appears  to  have  l)orne  the  whole,  ov  tlie  greater  part  of 
lier  liouse-kee[)ing  expenses  dining  that  lime.      He  inquired  for,  and 


148  BELL   V.    KENNEDY.  [CHAP.  1|L 

looked  after,  various  estates,  in  the  south  of  Scotland  especially,  and 
he  indicated  a  preference  for  the  estates  of  Blairston  or  Auchin- 
draiue,  of  Mollance,  and  of  Enterkine.  With  regard  to  Blairston  or 
Auchindraine,  it  does  not  appear,  so  far  as  I  can  discover,  to  have 
been  actually  offered  to  him  for  sala  With  regard  to  Mollance, 
before  he  came  to  any  determination  as  to  it,  it  was  sold  to  another 
person.  With  regard  to  Enterkine,  at  the  time  we  are  speaking  of, 
the  1st  of  June,  1838,  a  negotiation  had  been  going  on  by  letters 
written  between  the  appellant  and  those  who  were  proposing  to  sell 
the  estate,  but  the  offer  which  he  ultimately  made  for  it  had  at  that 
time  been  refused,  and,  on  the  1st  of  June,  1838,  there  was  no  pend- 
ing offer  on  his  part  for  the  property.  Mrs.  Bell,  his  wife,  at  this 
time  was  expecting  her  confinement.  The  house  cf  his  mother-in- 
law,  in  which  they  were  sojourning,  was  not  sufficiently  commodious 
for  their  wants,  and  the  appellant  took  for  one  year  a  furnished 
house  in  Ayrshire,  called  Trochraigue.  He  took  it  with  no  inten- 
tion, apparently,  of  buying  the  estate,  although  it  appears  to  have 
been  for  sale,  but  with  the  intention  of  living  for  a  year  in  the 
house,  and  he  hired  servants  for  his  accommodation.  He  removed 
to  Trochraigue  on  the  1st  of  June,  1838,  and,  while  so  sojourning 
there,  Mrs.  Bell  died  in  her  confinement  on  the  28th  of  September  in 
that  year. 

It  appears  to  me,  beyond  all  doubt,  that  prior  to  this  time  the 
appellant  had  evinced  a  great  and  preponderating  preference  for 
Scotland  as  a  place  of  residence.  He  felt  and  expressed  a  great 
desire  to  find  an  estate  there  with  a  residence  upon  it,  with  which 
he  would  be  satisfied.  His  wife  appears  to  have  been  even  more 
anxious  for  this  than  he  himself  was;  and  her  mother  and  their 
friends  appear  to  have  been  eager  for  the  appellant  to  settle  in 
Scotland.  There  is  no  doubt  that,  since  the  death  of  his  wife,  he 
actually  has  bought  the  estate  which  I  have  mentioned,  the  estate  of 
Enterkine,  and  that  his  domicile  is  now  in  Scotland.  All  that,  in 
my  opinion,  would  not  be  enough  to  effect  the  acquisition  of  a  Scotch 
domicile.  There  was,  indeed,  a  strong  probability  up  to  the  time  of 
the  death  of  his  wife  that  he  would  ultimately  find  in  Scotland  an 
estate  to  his  liking,  and  that  he  would  settle  there.  But  it  appears 
to  me  to  be  equally  clear  that  if,  in  the  course  of  bis  searches,  a 
property  more  attractive  or  more  eligible  as  an  investment  had  been 
offered  to  him  across  the  Border,  he  might,  without  any  alteration 
or  change  in  the  intention  which  he  expressed  or  entertained,  have 
acquired  and  purchased  such  estate  and  settled  upon  it,  and  thus 
have  acquired  an  English  domicile.  In  point  of  fact,  he  made  more 
or  less  of  general  inquiry  after  estates  in  England;  and  a  circum- 
stance is  told  us  by  one  of  the  witnesses,  Mr.  Telfer,  which  seems  to 
me  of  great  significance.  Mr.  Telfer  says  that  his  relations  enter- 
tained great  apprehension  or  dread  that  he  would  settle  in  England  — 
a  state  of  feeling  on  their  part  totally  inconsistent  with  the  notion 


6ECT.    I.]  BELL    V.    KENNEDY.  149 

that  he  had,  to  their  knowledge,  at  that  time  determined  ultimately 
and  finally  to  settle  in  Scotland. 

These  being  the  admitted  facts,  let  me  next  turn  to  the  character 
of  the  parol  evidence  in  the  case.  As  to  the  evidence  of  the  mem- 
bers of  the  Hosack  family,  and  of  the  servants,  very  little  is  to  be 
extracted  from  it  in  the  shape  of  information  upon  which  we  can 
rely.  They  speak  of  what  they  considered  and  believed  was  the 
intention  of  the  appellant;  but  as  to  anything  he  said  or  did,  to 
which  alone  your  Lordships  could  attend,  they  tell  us  nothing  beyond 
what  we  have  from  the  letters.  As  to  the  evidence  of  the  appellant 
himself,  I  am  disposed  to  agree  very  much  with  what  was  said  at  the 
bar,  that  it  is  to  be  accepted  with  very  considerable  reserve.  An 
appellant  has  naturally,  on  an  issue  like  the  present,  a  very  strong 
bias  calculated  to  influence  his  mind,  and  he  is,  moreover,  speaking 
of  what  was  his  intention  some  twenty-five  years  ago.  I  am  bound, 
however,  to  say,  and  therein  I  concur  with  what  was  said  by  the 
Court  of  Session,  that  the  evidence  of  the  appellant  appears  to  be 
fair  and  canditl,  and  that  certainly  nothing  is  to  be  extracted  from  it 
which  is  favorable  to  the  respondents  as  regards  the  onus  of  proof 
which  they  have  to  discharge. 

I  will  now  ask  your  Lordships  to  look  at  what  to  my  mind  appears 
the  most  satisfactory  part  of  the  case,  namely,  the  correspondence 
contemporaneous  with  the  events  in  the  years  1837  and  1838.  1  do 
not  propose  to  go  through  it  at  length,  but  I  will  ask  you  to  consider 
simply  certain  principal  epochs  in  the  correspondence  from  which,  as 
it  appears  to  me,  we  derive  considerable  light  as  to  the  intentions  of 
the  appellant. 

In  the  first  place,  1  turn  to  a  letter  written  by  the  appellant  on  the 
•26th  of  September,  1837,  three  months  after  the  appellant  and  his 
wife  had  come  to  Scotland.  He  is  writing  from  Minto  Street,  Edin- 
burgh, to  his  brother-in-law,  Mr.  William  Hosack,  in  Jamaica,  and 
he  says:  "I  have  not  got  rid  of  my  complaint  as  yet,  and  still  find 
ditllculty  in  walking  much,  and  was  obliged  to  forego  the  pleasures 
of  shooting,  on  which  I  had  so  much  set  my  heart.  This  country  is 
far  too  cold  for  a  person  not  having  the  right  use  of  his  limbs.  In 
fact  I  have  been  little  taken  with  anything,  and  would  go  to  Canada, 
Jamaica,  or  Australia,  without  hesitation.  I  enjoy  the  fresh  butter 
and  gooseberries."  'Of  the  latter  —  that  is,  of  the  gooseberries  —  he 
proceeds  to  state  some  evil  consequences  wiiich  he  IkhI  suffered,  and 
then  he  says:  "Everything  else  is  as  good,  or  has  an  equivalent 
fully  as  good,  in  .Jamaica.  My  mind  is  not  made  up  as  to  the  pur- 
chase of  an  estate.  Land  bears  too  high  a  value  in  proportion  to 
other  things  in  this  country,  owing  to  the  meml)ers  of  the  House  of 
Commons  and  of  Lords  being  all  landowners,  and  having  thereby 
received  greater  legislative  protection.  The  reform  voters  begin 
to  see  this,  and  as  soon  as  the  character  of  the  House  of  Commons 
changes  enough  (and  it  is  changing  prodigiously)  the  value  of  land 


150  BELL   V.    KENNEDY.  [CHAP.  IL 

will  come  to  its  true  value  in  the  State.  I  have  formed  these  views 
since  I  came  home,  and  have  lost  in  proportion  my  land-buying 
mania."  Thus,  having,  as  I  have  stated,  a  domicile  by  birth  in 
Jamaica,  and  having  come  to  this  country  with  an  indeterminate 
view  as  to  what  property  he  should  become  the  purchaser  of,  writing 
three  months  afterwards,  he  says:  "I  have  been  little  taken  with 
anything,  and  would  go  to  Canada,  Jamaica,  or  Australia,  without 
hesitation."  Nothing  can  be  more  significant  as  to  the  absence  of 
any  determination  in  his  mind  to  make  Scotland  his  fixed  home,  and 
to  spend  the  remainder  of  his  days  there. 

I  come  to  the  27th  of  December,  1837,  when  the  appellant,  again 
writing  to  the  same  brother-in-law  in  Jamaica,  says:  "As  to  the 
country,  I  like  none  of  it.  I  have  not  purchased  an  estate,  and  not 
likely  to  do  so.  I  had  my  guns  repaired,  bought  a  pointer,  pur- 
chased the  shooting  of  an  estate  for  £10,  have  never  been  there,  nor 
fired  a  shot  anywhere  else.  Have  had  a  fishing  rod  in  my  hands  only 
for  two  hours,  and  caught  nothing.  I  bought  a  horse,  and  might  as 
well  have  bought  a  bear.  He  bites  so,  it  would  have  been  as  easy 
to  handle  the  one  as  the  other.  I  exchanged  him  for  a  mare,  and, 
positively,  I  have  sent  her  to  enjoy  herself  in  a  farm  straw  yard, 
without  ever  having  been  once  on  her  back,  or  even  touched  her  in 
anyway."  Here,  again,  we  find  that  so  far  from  his  expressing  a 
liking  for  the  country  upon  better  acquaintance,  he  says  he  does  not 
like  it,  and  so  far  from  a  determination  to  purchase  an  estate  in 
Scotland  and  end  his  days  upon  it,  he  says,  "I  have  not  purchased 
an  estate,  and  am  not  likely  to  do  so." 

Passing  over  three  months  more,  I  come  to  a  letter  dated  the  20th 
of  March,   1838,  by  Mrs.  Bell,  the  wife's   expressions  being  even 
more  significant  than  those  of  her  husband;  for  it  is  obvious  that 
she,  of  the  two,  was  more  inclined  to  settle  in  Scotland.     She  writes: 
"The  extreme  severity  of  the  winter  has  put  us  a  good  deal  out  'Of 
conceit  of  Scotland,  but  independent  of  that,  I  don't  find  the  satis- 
faction in  it  I  anticipated.     If  circumstances  permitted,  I  would  not 
mind  to  return  to  Jamaica,   though,  I  dare  say,  after  being  here  a 
few  years  I  might  not  like  it.     This  country  is  so  gloomy,  it  is  sadly 
depressing  to  the  spirits,   so  unlike  what  one   has  been   used  to  in 
dear,  lovely  Jamaica.     The  vile  pride  and  reserve  of  the  people  is 
here  too  great  a  source  of  annoyance.     A  man  is  not  so  much  valued 
on  the  manners  and  education  of  a  gentleman  as  on  the  rank  of  his 
great  grandfather  —  that  is  to  say,  among  a  certain  class.     You  will 
perceive  from  this  we  are  still  at  Number  9.     Bell  has  several  prop- 
erties in  view,  but  is  as  undetermined  about  where  we  may  settle  as 
when  he  left  Jamaica.     Next  week  be  goes  to  Ayrshire  to  look  at  an 
estate,  and  from  thence  to  Galloway  and  Dumfriesshire.     If  we  don't 
fix  very  soon  we  purpose  taking  a  furnished  house  in  the  country  for 
twelve  months."     Now,  the  whole  of  this  passage,  I  think,  is  of  con- 
siderable importance,  but  the  last  sentence  I  have  read  affords  a  key 


SECT.  I.]  BELL   V.    KENNEDY.  151 

which  may  be  useful  iu  letting  us  into  the  design  of  the  spouses  in 
taking  the  furnislied  house  of  Troehraigue.  The  interpretation  given 
by  this  letter  is,  that  it  was  equivalent  to  saying  that  they  had  not 
at  that  time  fixed  upon  a  residence. 

I  pass  on  for  two  months  more.  The  offer  which  in  the  interval  he 
had  made  for  Euterkine  had  been  refused.  The  furnished  house  at 
Troehraigue  had  been  taken.  The  appellant  and  his  wife  were  upon 
the  eve  of  taking  possession  of  it  on  the  1st  of  June,  1838;  and  on 
the  28th  of  May,  1838,  the  appellant  writes  to  his  brother-in-law  in 
Jamaica:  "I  have  taken  a  country  house  at  Trochrigg."  ''I  leave 
this  for  it  on  the  1st  of  June.  It  is  situated  two  miles  from  Girvan, 
which  is  twenty  miles  west  of  Ayr,  on  the  seacoast.  Therefore  for 
the  next  twefve  months  you  can  address  to  me  Trochrigg,  near 
Girvan,  Ayrshire,  Scotland.  The  offer  which  I  wrote  you  I  have 
made  for  Enterkine  I  received  no  answer  to  until  sixteen  days  after, 
and  then  I  got  an  answer  stating  they  had  a  better  offer.  Of  this  I 
believe  as  much  as  I  like,  for  I  see  it  advertised  again  in  the  Satur- 
day's paper.  I  do  not  know  whether  I  shall  make  anything  of  this 
estate  for  the  present,  and  I  care  not.  It  is  still  very  cold,  and  if 
I  do  not  make  a  purchase  in  the  course  of  this  year,  I  perhaps  will 
take  a  trip  next  summer  to  the  south  of  France,  and  see  whether  I 
don't  find  it  warmer  there."  That  is  to  say  in  the  next  summer, 
which  would  be  the  summer  of  1839,  he  was  in  expectation  that  Mrs. 
Bell  and  his  family  would  be  able  to  accompany  him  to  "take  a  trip 
to  the  south  of  France,  and  see  whether  he  did  not  find  it  warmer 
there,"  not,  as  it  seems  to  me,  for  the  purpose  of  enjoying  a  tempo- 
rary  sojourn,  but,  if  he  found  it  a  more  agreeable  climate,  for  the 
purpose  of  making  it  his  permanent  residence. 

There  is  only  one  other  passage  to  which  I  would  ask  your  Lord- 
ships' attention.  It  is  in  a  letter  written  one  month  afterwards, 
while  Mr.  and  Mrs.  Bell  were  at  Trochrigg,  on  the  16th  of  June. 
Writing  to  Mr.  William  Hosack,  the  appellant  says:  "  There  are 
several  gentlemen's  seats  in  the  neighborhood,  but  none  of  them 
reside  in  them.  We  will  probably  have  only  three  or  four  acquaint- 
ances, and  shall  be,  in  that  respect,  much  the  same  as  in  Jamaica. 
We  must,  however,  make  the  most  of  it  for  twelve  months,  in  the 
hope  that  during  that  time  I  may  be  able  to  find  some  estate  that  wnll 
be  suitable  for  me  as  a  purchase." 

rfind  nothing  after  this  material  in  the  correspondence  before  the 
death  of  Mrs.  Bell,  and  the  last  sentence  I  have  read  appears  to  me 
to  sum  up  and  to  describe  most  accurately  the  position  in  which  the 
appellant  was  at  Trochrigg;  he  was  there  in  the  hope  that,  during 
the  "twelve  months,"  he  might  be  able  to  find  some  estate  which 
might  be  suitable  to  him  for  purchase;  hut  upon  that  contingency, 
as  it  seems  to  me,  depended  the  ultimate  clioice  which  he  would 
make  of  Scotland,  or  some  otlicr  country,  as  a  ]>laoe  of  residenoo. 
If  his  hope  should  be  realized,  we  uii-zlit   fi-nm  lliis  letter  easily  infer 


152  BELL   V.    KENNEDY.  [CHAP.  IL 

that  Scotland  would  become  his  home.  If  his  hope  should  not  be 
realized,  I  see  nothing  which  would  lead  nie  to  think,  but  everything 
which  would  lead  me  to  doubt,  that  he  would  have  elected  to  remain 
in  Scotland  as  his  place  of  residence. 

It  appears  to  me,  on  the  whole,  upon  consideration  of  the  facts 
which  are  admitted  in  the  case,  and  the  parol  evidence,  and  the 
correspondence  to  which  I  have  referred,  that  so  far  from  the  respon- 
dents having  discharged  the  onus  which  lies  upon  them  to  prove  the 
adoption  of  a  Scotch  domicile,  they  have  entirely  failed  in  discharg- 
ing that  burden  of  proof,  and  that  the  evidence  leads  quite  in  the 
opposite  direction.  There  is  nothing  in  it  to  show  that  the  appel- 
lant's personal  status  of  domicile  as  a  native  and  an  inhabitant  of 
Jamaica  has  been  changed  on  coming  here  by  that  which  alone  could 
change  it,  his  assumption  of  domicile  in  another  country.  I  am, 
therefore,  unfortunately  unable  to  advise  you  to  concur  in  the  opin- 
ion of  the  Court  of  Session.  The  Lord  Ordinary  entertained  the 
opinion  that  the  appellant,  from  the  first  moment  of  his  arrival  in 
Scotland,  and  of  his  sojourn  at  Mrs.  Hosack's  house,  had  acquired  a 
Scotch  domicile.  But  nothing  could  be  more  temporary  —  nothing 
more  different  from  the  state  of  things  that  would  lead  to  the  con- 
clusion of  the  assumption  of  a  Scotch  domicile  —  than  the  circum- 
stances under  which  that  sojourn  took  place.  Lord  Cowan,  in 
delivering  the  opinion  of  the  Court  of  Session,  appears,  on  the  other 
hand,  to  have  thought  that  the  Scotch  domicile  was  not  acquired  at 
the  time  of  arrival  in  Scotland,  but  w'as  acquired  at  the  time  of  tak- 
ing possession  of  Trochrigg.  But  if  we  are  to  put  upon  the  occupa- 
tion of  Trochrigg  the  interpretation  which  the  appellant  himself  put 
upon  it  at  the  time,  so  far  from  its  being  an  assumption  of  a  Scotch 
domicile,  it  appears  to  me  to  have  borne  an  entirely  different  con- 
struction, and  to  have  been  a  temporary  place  of  sojourn,  in  order 
that  a  determination  might  be  arrived  at  in  the  course  of  the  sojourn 
as  to  whether  a  Scotch  domicile  should  or  should  not  ultimately  be 
acquired. 

There  is  one  passage  in  the  judgment  of  the  Court  of  Session, 
delivered  by  Lord  Cowan,  to  which  I  must  ask  your  Lordships  more 
particularly  to  refer,  for  it  appears  to  me  to  afford  a  key  to  what  I 
think,  with  great  respect,  I  must  call  the  fallacious  reasoning  of  the 
judgment.  After  speaking  of  the  parol  evidence  given  by  the  appel- 
lant. Lord  Cowan  uses  these  words:  "For  after  all,  what  do  the 
statements  of  the  defender  truly  amount  to?  Simply  this,  that  prior 
to  September,  1838,  he  had  not  fixed  on  any  place  of  permanent  resi- 
dence, and  had  not  finally  made  up  his  mind  or  formed  any  fixed 
intention  to  settle  in  Scotland  before  he  bought  Enterkine.  There 
is  no  statement  that  he  had  it  in  his  mind  to  take  up  his  residence 
elsewhere  than  in  Scotland."  If,  my  Lords,  I  read  these  words  cor- 
rectly. Lord  Cowan  appears  to  have  intimated  that  in  his  opinion  it 
would  not  bo  enough  to  find  that  the  appellant  had  not  fixed  on  any 


SECT.  I.]  BELL    V.    KENNEDY.  153 

place  of  permanent  residence  prior  to  September,  1838,  and  tiad  not 
decidedly  made  up  his  mind  or  formed  a  tixed  intention  to  settle  in 
Scotland,  unless  proof  were  also  adduced  that  he  had  it  in  his  mind 
to  take  up  his  residence  elsewhere  than  in  Scotland.  I  venture  to 
think  that  would  be  an  entirely  fallacious  mode  of  reasoning,  and 
would  be  entirely  shifting  the  position  of  the  proof  which  has  to  be 
brought  forward.  The  question,  as  it  seems  to  me,  is  not  whether 
he  had  made  up  his  mind  to  take  up  his  residence  elsewhere  than 
in  Scotland,  but  the  question  is,  had  he,  prior  to  September,  1838, 
finally  made  up  his  mind  or  formed  a  fixed  intention  to  settle  in 
Scotland.  Lord  Cowan  appears  to  admit  that  the  parol  evidence 
itself  would  show  that  that  had  not  been  done,  and  that  parol  evi- 
dence is,  in  my  mind,  fortified  and  made  very  much  more  emphatic 
by  the  evidence  of  the  correspondence  to  which  I  have  referred. 

I  have  humbly,  therefore,  to  advise  your  Lordships  to  assoilzie  the 
defender  from  the  conclusions  of  the  summons,  and  to  reverse  the  six- 
teen interlocutors  which  have  been  pronounced  by  the  court  below. 

Lord  Westbury.  My  Lords,  I  have  very  few  words  to  add  to 
what  has  been  already  stated  to  your  Lordships;  and,  perhaps,  even 
those  are   not  quite  necessary. 

What  appears  to  me  to  be  the  erroneous  conclusion  at  which  the 
Court  of  Session  arrived  is  in  great  part  due  to  the  circumstance, 
frequently  lost  sight  of,  that  the  domicile  of  origin  adheres  until  a 
new  domicile  is  acquired.  In  the  argument,  and  in  the  judgments, 
we  find  constantly  the  phrase  used  that  he  had  abandoned  his  native 
domicile.  That  domicile  appears  to  have  been  regarded  as  if  it  had 
been  lost  by  the  abandonment  of  his  residence  in  Jamaica.  Now, 
residence  and  domicile  are  two  perfectly  distinct  things.  It  is  nec- 
essary in  the  administration  of  the  law  that  the  idea  of  domicile 
should  exist,  and  that  the  fact  of  domicile  should  be  ascertained,  in 
order  to  determine  which  of  two  municipal  laws  may  be  invoked  for 
the  purpose  of  regulating  the  rights  of  parties.  We  know  very  well 
that  succession  and  distribution  depend  upon  the  law  of  the  domi- 
cile. Domicile,  therefore,  is  an  idea  of  law.  It  is  the  relation 
which  the  law  creates  between  an  individual  and  a  particular  locality 
or  country.  To  every  adult  person  the  law  ascribes  a  domicile,  and 
that  domicile  remains  his  fixed  attribute  until  a  new  and  different 
attribute  usurps  its  place.  Now  this  case  was  argued  at  the  bar  on 
the  footing,  that  as  soon  as  Mv.  Bell  left  Jamaica  he  had  a  settled 
and  fixed  intention  of  taking  up  his  residence  in  Scotland.  And  if, 
indeed,  that  had  been  ascertained  as  a  fact,  then  you  would  have  had 
the  animus  of  the  party  clearly  demonstrated,  and  the  faetuin,  which 
alone  would  remain  to  be  proved,  would  in  fact  be  proved,  or,  at 
least,  would  result  immediately  upon   his  arrival   in   Scotland. 

The  true  inquiry,  therefore,  is,  Had  he  this  settled  jjurposo,  the 
moment  he  left  Jamaica,  or  in  course  of  the  voyage,  of  takin«r  up  a 


154  BELL   V.   KENNEDY.  [CHAP.  IL 

fixed  and  settled  abode  in  Scotland?  Undoubtedly,  part  of  the 
evidence  is  the  external  act  of  the  party;  but  the  only  external  act 
we  have  here  is  the  going  down  with  his  wife  to  Edinburgh,  the 
most  natural  thing  in  the  world,  to  visit  his  wife's  relations.  We 
find  him  residing  in  Scotland  from  that  time;  but  with  what  animus 
or  intention  his  residence  continued  there  we  have  yet  to  ascertain. 
For  although  residence  may  be  some  small  prma  facie  proof  of 
domicile,  it  is  by  no  means  to  be  inferred  from  the  fact  of  residence 
that  domicile  results,  even  although  you  do  not  find  that  the  party 
had  any  other  residence  in  existence  or  in  contemplation. 

I  take  it  that  Mr.  Bell  may  be  more  properly  described  by  words 
which  occur  in  the  Digest;  that  when  he  left  Jamaica  he  might  be  de- 
scribed as  qucerens.,  quo  se  conferat,  atque  ubi  constituat  domic'dium. 
Dio-.  lib.  50  t.  1,  27.    Where  he  was  to  fix  his  habitation  was  to  him  at 
that  time  a  thing  perfectly  unresolved;  and,  as  appears  from  the  letters 
which  your  Lordships  have  heard,  that  irresolution,  that  want  of  settled 
fixitv  of  purpose,  certainly  continued  down  to  the  time  when  he  actu- 
ally became  the  purchaser  of  Enterkine.     But  the  pu7ictmn  temjioris 
to  which  our  inquiries  are  to  be  directed  as  to  Mr.  Bell's  intention 
is  of  an  earlier  date  than  that.     The  question  is,  had  he  any  settled 
fixed  intention  of  being  permanently  resident  in  Scotland  on  the  28th 
of  September,  1838?     I  quite  agree  with  an  observation  which  was 
made  in  the  Court  of  Session,  that  the  letters  are  the  best  evidence 
in  the  case.     To  those  letters   your  Lordships'  attention  has   been 
directed,  and  whether  you  refer  to  the  language  of  the  wife's  letters, 
or  look  exclusively  at  the  language  of  the  husband's  letters  written 
to  his  familiar  friends  or  his  relatives  whom  he  had  left  in  Jamaica, 
it  is  impossible  to  predicate  of  him  that  he  was  a  man  who  had  a 
fixed  and  settled  purpose  to  make  Scotland  his  future  place  of  resi- 
.  deuce,  to  set  up  his  tabernacle  there,  to  make  it  his  future  home. 
And  unless   you  are  able  to  show  that  with   perfect  clearness  and 
satisfaction  to  yourselves,  it  follows  that  the  domicile  of  origin  con 
tinues.     And  therefore  I  think  we  can  have  no  hesitation  in  answer- 
ing the  question  where  he  was  settled  on  the  28th  of  September.     It 
must  be  answered   in  this  way;    he  was  resident   in   Scotland,  but 
without  the  animus  manendi,  and  therefore  he  still  retained  his  domi- 
cile of  origin. 

My  Lords,  it  is  matter  of  deep  regret,  that  although  it  might 
have  been  easily  seen  from  the  commencement  of  this  cause  that  it 
turned  entirely  upon  this  particular  question,  yet  we  find  that  ten 
years  of  litigation  have  taken  place,  with  enormous  expense,  and  an 
enormous  amount  of  attention  to  a  variety  of  other  matters,  which 
would  have  been  wholly  unnecessary  if  judicial  attention  had  been 
concentrated  upon  this  question,  which  alone  was  sufficient  for  the 
decision  of  the  case.^ 

1  Ace.  Ennis  v.  Smith,  14  How.   400  ;  Mitchell  v.  U.  S.,  21  Wall.  350  ;  Hartford 
V.  Cliampion,  58   Conn.  268,  20  Atl.  471  ;  Wilkins  v.  Marshall,  80  HI.  74  ;  Astley  w. 


SECT.  I.J  UDNY   V.    UDNY.  loij 


UDNY  V.  UDNY. 

House  of  Lords.     1869. 

[Reported  Law  Reports,  1  House  of  Lords  (Scotch),  441.] 

The  late  Colonel  John  Robert  Fullerton  Udny,  of  Udny,  In  the 
county  of  Aberdeen,  though  born  at  Leghorn,  where  his  father  was 
consul,  had  by  paternity  his  domicile  in  Scotland.  At  the  age  of  fif- 
teen, in  the  year  1794,  he  was  sent  to  Edinburgh,  where  he  remained 
for  three  years.  In  1797  he  became  an  officer  in  the  Guards.  In 
1802  he  succeeded  to  the  family  estate.  In  1812  he  married  Miss 
Emily  Fitzhugh,  —  retired  from  the  army,  —  and  took  upon  lease  a 
house  in  London,  where  he  resided  for  thirty-two  years,  paying  occa- 
sional visits  to  Aberdeenshire. 

In  1844,  having  got  into  pecuniary  difficulties,  he  broke  up  his 
establishment  in  London  and  repaired  to  Boulogne,  where  he  re- 
mained for  nine  years,  occasionally,  as  before,  visiting  Scotland. 
In  1846  his  wife  died,  leaving  the  only  child  of  her  marriage,  a  son, 
who,  in  1859,  died  a  bachelor. 

Some  time  after  the  death  of  his  wife  Colonel  Udny  formed  at 
Boulogne  a  connection  with  Miss  Ann  Allat,  which  resulted  in  the 
birth  at  Camberwell,  in  Surrey,  on  the  9th  of  May,  1853,  of  a  son, 
the  above  respondent,  whose  parents  were  undoubtedly  unmarried 
when  he  came  into  the  world.  They  were,  however,  united  after- 
wards in  holy  matrimony  at  Ormistou,  in  Scotland,  on  the  2d  of 
January,  1854,  and  the  question  was  whether  the  respondent,  under 
the  circumstances  of  the  case,  had  become  legitimate  per  suhsequena 
tnatrinioniuni. 

The  Court  of  Session  (First  Division)  on  the  14th  of  Decemlier, 
1866,  3d  Series,  vol.  v.  p.  164,  decided  that  Colonel  Udny's  domi- 
cile of  origin  was  Scotch,  and  that  he  had  never  altered  or  lost  it, 
notwithstanding  his  long  absences  from  Scotland.  They  therefore 
found  that  his  son,  the  respondent,  "though  illegitimate  at  his  birch, 
was  legitimated  by  the  subsequent  marriage  of  his  parents."  Hence 
this  appeal,  which  the  House  regarded  as  involving  questions  of 
greatly  more  than  ordinary  importance. 

Lord  Westbury.  ^  The  law  of  P:ngland,  and  of  almost  all  civilized 
countries,    ascribes   to  each  individual    at    his    birth    two    distinct 

Capron,  89  Ind.  167  ;  Otis  v.  Boston,  12  Cush.  44 ;  DeMeli  v.  DeMeli,  120  N.  Y.  485, 
24  N.  E.  996  ;  Guier  v.  O'Daniel,  1  Bin.  349  n.  ;  Pilson  v.  Bushong,  29  Grat.  229  ; 
Kellogg  V.  Winnebago  County,  42  Wis.  97. 

Conversely,  the  mere  intent  to  acquire  a  new  doniioiln  \vitlio\it  i>liysical  presence  at  the 
new  place  will  not  change  the  dotnicile.  Goods  of  Haffenel,  3  Sw.  &  Tr.  49  ;  In  re  Mar- 
rett,  36  Ch.  Div.  400  ;  Taliiiadge  v.  Talinadge,  66  Ala.  199  ;  Carter  v.  Soniniernicyer, 
27  Wis.  66.'>  ;  de  Clianipagny's  Appeal  (French  Cassation),  Dalloz,  1875,  i.  384; 
Martini  v.  Scliliewinski,  (Germany,  Oberhandelsgeric.ht),  13  Eiits(di.  363.  —  Ed. 

1  Concurring  opinions  of  the  LniiD  Cha.ncklujk,  Lord  Ciiki.mskoki),  an.l  r>ord 
Coi,ONSAY   are  omitted.  —  Ed. 


156  UDNY    V.    UDNY.  [CEAP.  II. 

legal    states    or   conditions;    one    by    virtue   of   which    he   ■becomes 
the  subject  of   some    particular  country,    binding    him  by  the   time 
of  natural  allegiance,  and  which  may  be  called  his  political  status; 
another,    by    virtue  of  which  he  has  ascribed  to    him  the  character 
of  a   citizen   of    some  particular  country,   and  as  such  is  possessed 
of   certain    municipal    rights,  and    subject    to    certain    obligations, 
which   latter   character    is    the    civil    status    or    condition    of    the 
individual,    and   may    be   quite   different   from    his    political  status. 
The   political    status    may    depend    on    different    laws    in    different 
countries;  whereas  the   civil  status  is  governed    universally  by    one 
single   principle,  namely,  that   of   domicile,    which  is   the  criterion 
established    by     law    for   the   purpose   of   determining  civil    status. 
For     it    is    on    this   basis   that   the    personal    rights   of   the    part}', 
that    is  to  say,   the  law  which  determines    his  majority  or  minority, 
his    marriage,     succession,     testacy,     or    intestacy,     must     depend. 
International  law  depends  on  rules  which,   being  in   great   measure 
derived   from   the   Roman   law,    are    common    to   the    jurisprudence 
of   all    civilized    nations.     It   is    a   settled    principle    that    no    man 
shall    be    without   a   domicile,    and    to   secure   this    result    the    law 
attributes  to  every  individual  as  soon  as  he  is  born  the  domicile  of 
his  father,  if  the  child  be  legitimate,  and  the  domicile  of  the  mother 
if  illegitimate.     This  has  been  called  the  domicile  of  origin,  and  is 
involuntary.     Other  domiciles,   including  domicile    by  operation   of 
law,   as  on  marriage,  are  domiciles  of   choice.     For  as  soon  as  an 
individual  is  sui  juj'is  it  is  competent  to  him  to  elect  and  assume 
another  domicile,  the  continuance  of   which  depends  upon  his  will 
and  act.      When  another  domicile  is  put  on,  the  domicile  of  origin 
is  for  that  purpose  relinquished,  and  remains  in  abeyance  during  the 
continuance  of  the  domicile  of  choice;  but  as  the  domicile  of  origin 
is  the  creature  of  law,  and  independent  of  the  will  of  the  party,  it 
would   be  inconsistent  with  the  principles   on   which    it  is   by  law 
created  and  ascribed,  to  suppose  that  it  is  capable  of  being  by  the 
act  of  the  party  entirely  obliterated  and  extinguished.     It  revives 
and    exists  whenever   there    is    no   other   domicile,  and  it  does  not 
require  to  be  regained  or  reconstituted  anlmo  et  facto,  in  the  manner 
which  is  necessary  for  the  acquisition  of  a  domicile  of  choice. 

Domicile  of  choice  is  a  conclusion  or  inference  which  the  law 
derives  from  the  fact  of  a  man  fixing  voluntarily  his  sole  or  chief 
residence  in  a  particular  place,  with  an  intention  of  continuing  to 
reside  there  for  an  unlimited  time.  This  is  a  description  of  the  cir- 
cumstances which  create  or  constitute  a  domicile,  and  not  a  defini- 
tion of  the  term.  There  must  be  a  residence  freely  chosen,  and  not 
prescribed  or  dictated  by  any  external  necessity,  such  as  the  duties 
of  office,  the  demands  of  creditors,  or  the  relief  from  illness;  and  it 
must  be  residence  fixed  not  for  a  limited  period  or  particular  pur- 
pose, but  general  and  indefinite  in  its  future  contemplation.  It  is 
true  that  residence  originally  temporary,  or  intended  for  a  limited 


SECT.  I.]  UDNY   V.    UDNY.  l."7 

period,  may  afterwards  become  general  and  unlimited,  and  in  such  a 
case  so  soon  as  the  change  of  purpose,  or  animus  manendi^  can  be 
inferred  the  fact  of  domicile  is  established. 

The  domicile  of  origin  may  be  extinguished  by  act  of  law,  as,  for 
example,  bj'  sentence  of  death  or  exile  for  life,  which  puts  an  end  to 
the  status  civilis  of  the  criminal;  but  it  cannot  be  destroyed  by  the 
will  and  act  of  the  part}-. 

Domicile  of  choice,  as  it  is  gained  an'nno  et  facto^  so  it  may  be 
put  au  end  to  in  the  same  manner.  Expressions  are  found  in  some 
books,  and  in  one  or  two  cases,  that  the  first  or  existing  domicile 
remains  until  another  is  acquired.  This  is  true  if  applied  to  the 
domicile  of  origin,  but  cannot  be  true  if  such  general  words  were 
intended  (which  is  not  probable)  to  convey  the  conclusion  that  a 
domicile  of  choice,  thongh  unequivocally  relinquished  and  aban- 
doned, clings,  in  despite  of  his  will  and  acts,  to  the  party,  until 
another  domicile  has  anlm.o  et  facto  been  acquired.  The  cases  to 
which  I  have  referred  are,  in  my  opinion,  met  and  conti'oUed  hy 
other  decisions.  A  natural-born  Englishman  may,  if  he  domiciles 
himself  in  Holland,  acquire  and  have  the  status  civilis  of  a  Dutch- 
man, which  is  of  course  ascribed  to  him  in  respect  of  his  settled 
abode  in  the  land,  but  if  he  breaks  up  his  establishment,  sells  his 
house  and  furniture,  discharges  his  servants,  and  quits  Holland, 
declaring  that  he  will  never  return  to  it  again,  and  taking  with  him 
his  wife  and  children,  for  the  purpose  of  travelling  in  Erance  or  Italy 
in  search  of  another  place  of  residence,  is  it  meant  to  be  said  that  he 
carries  his  Dutch  domicile,  that  is,  his  Dutch  citizenship,  at  his 
back,  and  that  it  clings  to  him  pertinaciously  until  he  has  finally  set 
up  his  tabernacle  in  another  country?  Such  a  conclusion  would  be 
absurd;  but  there  is  no  absurdity  and,  on  the  contrary,  much  reason, 
in  holding  that  an  acquired  domicile  may  be  effectually  abajidoned 
by  unequivocal  intention  and  act;  and  that  when  it  is  so  determined 
the  domicile  of  origin  revives  until  a  new  domicile  of  choice  be 
acquired.  According  to  the  dicta  in  the  books  and  cases  referred  to, 
if  the  Englishman  whose  case  we  have  been  supposing  lived  for 
twenty  years  after  he  had  finally  quitted  Holland,  without  acquiring 
a  new  domicile,  ancl  afterwards  died  intestate,  his  })ersonal  estate 
would  be  administered  according  to  the  law  of  Holland,  and  not 
according  to  that  of  his  native  country.  This  is  an  irrational  conse- 
quence of  the  supposed  rule.  I^ut  when  a  proposition  supposed  to  l)e  au- 
thorized by  one  ov  moriMlecisions  involves  absurd  results,  there  is  great 
reason  for  .believing  that  no  such  rule  was  intended  to  be  laid  down. 

In  Mr.  Justice  Story's  Conflict  of  Laws  (the  last  edition)  it  is 
stated  that  "'the  moment  the  foreign  domicile  (that  is,  the  domicile 
of  choice)  is  abandoned,  the  native  domicile  or  domicile  of  origin  is 
re-acquired." 

And  such  appears  to  be  the  just  conclusion  from  Kcvcrni  decided 
cases,  as  well  as   from  IIk^  principles  of  tlic  law  of  domicile. 


158  UDNY   V.   UDNY.  [CIIAP.    II. 

In  adverting  to  Mr.  Justice  Story's  work,  I  am  obliged  to  dissent 
from  a  conclusion  stated  in  the  last  edition  of  that  useful  book,  and 
which  is  thus  expressed,  "The  result  of  the  more  recent  English 
cases  seems  to  be,  that  for  a  change  of  national  domicile  there  must 
be  a  definite  and  effectual  change  of  nationality."  In  support  of  this 
proposition  the  editor  refers  to  some  words  which  appear  to  have 
fallen  from  a  noble  and  learned  lord  in  addressing  this  House  in  the 
case  of  Moorhouse  v.  Lord,  10  H.  L.  C.  272,  when  in  speaking  of 
the  acquisition  of  a  French  domicile.  Lord  Kingsdown  says,  "A  man 
must  intend  to  become  a  Frenchman  instead  of  an  Englishman." 

These  words  are  likely  to  mislead,  if  they  were  intended  to  signify 
that  for  a  change  of  domicile  there  must  be  a  change  of  nationality, 
that  is,  of  natural  allegiance. 

That  would  be  to  confound  the  political  and  civil  states  of  an  indi- 
vidual, and  to  destroy  the  difference  between  patria  and  domicilium. 

The  application  of  these  general  rules  to  the  circumstances  of  the 
present  case  is  very  simple.  I  concur  with  my  noble  and  learned 
friend  that  the  father  of  Colonel  Udny,  the  consul  at  Leghorn,  and 
afterwards  at  Venice,  and  again  at  Leghorn,  did  not  by  his  residence 
there  in  that  capacity  lose  his  Scotch  domicile.  Colonel  Udny  was, 
therefore,  a  Scotchman  by  birth.  But  I  am  certainly  inclined  to 
think  that  when  Colonel  Udny  married,  and  (to  use  the  ordinary 
phrase)  settled  in  life  and  took  a  long  lease  of  a  house  in  Grosvenor 
Street,  and  made  that  a  place  of  abode  of  himself  and  his  wife  and 
children,  becoming,  in  point  of  fact,  subject  to  the  municipal  duties 
of  a  resident  in  that  locality;  and  when  he  had  remained  there  for  a 
period,  I  think,  of  thirty-two  years,  there  being  no  obstacle  in  point 
of  fortune,  occupation,  or  duty,  to  his  going  to  reside  in  his  native 
country;  under  these  circumstances,  I  should  come  to  the  conclusion, 
if  it  were  necessary  to  decide  the  point,  that  Colonel  Udny  deliber- 
ately chose  and  acquired  an  English  domicile.  But  if  he  did  so,  he 
as  certainly  relinquished  that  English  domicile  in  the  most  effectual 
way  by  selling  or  surrendering  the  lease  of  his  house,  selling  his 
furniture,  discharging  his  servants,  and  leaving  London  in  a  manner 
which  removes  all  doubt  of  his  ever  intending  to  return  there  for  the 
purpose  of  residence.  If,  therefore,  he  acquired  an  English  domicile 
he  abandoned  it  absolutely  ammo  et  facto.  Its  acquisition  being  a 
thing  of  choice,  it  was  equally  put  an  end  to  by  choice.  He  lost  it 
the  moment  he  set  foot  on  the  steamer  to  go  to  Boulogne,  and  at  the 
same  time  his  domicile  of  origin  revived.  The  rest  is  plain.  The 
marriage  and  the  consequences  of  that  marriage  must  be  determined 
by  the  law  of  Scotland,  the  country  of  his  domicile.-^ 

1  Ace.  Reed's  Appeal,  71  Pa.  378  (semble) ;  Allen  v.  Thomason,  11  Humph.  536. 
Contra,  Munroe  v.  Douglas,  5  Madd.  379  ;  First  Nat.  Bank  v.  Balcom,  35  Conn.  351; 
Succession  of  Steers,  47  La.  Ann.  1551,  18  So.  503;  Harvard  College  v.  Gore,  5  Pict 
370  {semble).  —  Ed. 


SECT.  I.]  IN  i;e  tootal's  trusts.  159 


In  re  TOOTAL'S  TRUSTS. 

High  Court  of  Justick,  Chancery  Division.     1883. 

[Reported  23  Chancery  Division,  53"2.] 

Chitty,  J.  The  question  raised  hy  this  petition  is  whether  the  per- 
sonal estate  of  the  testator,  J.  B.  Tootal,  is  hable  to  legacy  dut}-.  The 
testator's  will  was  proved  in  Her  ^lajesty's  Supreme  Court  for  China 
and  Japan  at  Shanghai,  and  has  not  been  proved  in  England.  No 
part  of  liis  personal  estate  was  locally  situate  in  England  at  the  time 
of  his  deatli,  and  it  is  admitted  on  tlie  [)art  of  the  Crown  that  probate 
in  England  is  not  required.  In  consequence  of  tlie  claim  made  by  the 
Crown  for  legacy  duty  the  executors,  wiio  are  also  trustees  of  the  will, 
have  paid  the  funds  representing  the  residuary  personal  estate  into 
court  under  the  Trustee  Relief  Act.  And  tlie  petition  is  presented  by 
some  of  the  residuar\'  legatees,  or  persons  claiming  under  them,  asking 
for  a  declaration  that  the  testator  was  domiciled  at  Shanghai  at  the 
time  of  his  death,  and  consequently  that  no  legacy  duty  is  payable, 
and  for  a  distribution  of  the  fund  on  that  footing. 

The  liabilit}"  of  the  personal  estate  of  a  testator  or  intestate  to  legacy 
duty  under  the  statutes  in  question  depends  on  his  domicile  at  his 
death  ;  if  his  domicile  is  in  Great  Britain  the  duty  is  payable,  if  his 
domicile  is  out  of  Great  Britain  no  dut}'  is  payable.  That  his  personal 
estate  ma\-  happen  to  be  locally  situate  in  Great  Britain,  or  that  the 
funds  may  be  transmitted  to  Great  Britain  for  the  purpose  of  being 
paid  to  the  legatees,  are  immaterial  circumstances.  The  broad  princi- 
ple that  the  liabilit}-  depends  on  domicile  was  established  b}-  the  House 
of  Lords  in  Thomson  v.  Advocate-General,  12  CI.  &  F.  1.  The  earlier 
decisions  in  conflict  with  that  principle  were  overruled  by  that  case. 
The  previous  decision  of  the  House  of  Lords  in  Attorney-General  v. 
Forbes,  2  CI.  &  F.  48,  does  not,  when  explained,  conflict  with  Thomson 
V.  Advocate-General.  As  was  pointed  out  by  Lord  Wensleydale  in 
Attorney-General  w.  Napier,  6  Ex.  217,  the  case  of  Attorney-General 
V.  Forbes  proceeded  upon  the  assumption  (which  so  far  as  the  facts  are 
stated  in  the  reports  was  erroneous)  that  the  domicile  was  in  India,  and 
it  must  be  treated  as  a  case  of  domicile  in  India.  The  first  and  prin- 
cipal question  then  is  where  the  testator  was  domiciled  at  the  time  of 
his  death. 

It  is  admitted  that  his  domicile  of  origin  was  in  England.  The  bur- 
*Jen  of  proof  that  he  had  acquired  a  new  domicile  of  choice  therefore 
rests  on  the  petitioners. 

The  facts  are  not  in  dispute.  After  some  previous  changes  of  resi- 
dence, which  it  is  unnecessary  to  trace,  the  testator  in  18G2  went  to 
reside  at  Shanghai  in  the  Em[)ire  of  China,  and,  with  the  exception  of 
some  visits  to  England  in  18G4  and  187;{  for  health  and  business,  he 
continued  to  reside  at  Shanghai  till  his  dcalii.  which  occurred  in   1878 


IGO  IN  RE  tootal's  trusts.  [chap.  II. 

During  his  residence  there  he  very  extensively  engaged  in  business  in 
connection  with  newspapers,  being  the  manager  and  part  proprietor  of 
the  "•  North  China  Herald  "  and  the  "  North  China  Daily  News"  and 
other  publications  and  periodicals,  all  of  which  were  published  at 
Shanghai,  and  he  was  also  a  partner  in  a  printing  business  there. 

Evidence  has  been  adduced  on  the  part  of  the  petitioners  showing 
that  for  some  years  before  his  death  he  had  determined  to  reside  per- 
manently at  Shanghai,  and  had  relinquished  all  intention  of  ever 
returning  to  England,  and  that  he  had  in  fact  on  several  occasions 
expressed  his  intention  of  not  returning  to  England.  This  evidence 
remains  uncontradicted  on  the  part  of  tlie  Crown.  In  his  will  he 
describes  himself  as  of  Shanghai  in  the  Empire  of  China.  In  these 
circumstances  it  was  admitted  by  the  petitioners'  counsel  that  they 
could  not  contend  that  the  testator's  domicile  was  Chinese.  This  ad 
mission  was  rightly  made.  The  ditference  between  the  religion,  laws, 
manners,  and  customs  of  the  Chinese  and  of  Englishmen  is  so  great 
as  to  raise  every  presumption  against  such  a  domicile,  and  brings  the 
case  within  the  principles  laid  down  by  Lord  Stowell  in  his  celebrated 
judgment  in  The  Indian  Chief,  3  Rob.  Adm.  29,  and  by  Dr.  Lushing- 
ton  in  Maltass  v.  Maltass,  1  Rob.  Ecc.  67,  80,  81. 

But  it  is  contended  on  the  part  of  the  petitioners  that  the  testator's 
domicile  was  what  their  counsel  termed  "  Anglo-Chinese,"  a  term  in- 
geniously invented  in  analogy  to  the  term  "  Anglo-Indian." 

To  make  this  contention  intelHgible  it  is  necessary  to  state  some 
further  facts.  Under  the  treaties  between  Her  Majesty  and  the  Em- 
peror of  China  of  1842,  1843,  and  1858,  British  subjects  with  their 
families  and  their  establishments  are  allowed  to  reside  for  the  purpose 
of  carrying  on  their  mercantile  pursuits  without  molestation  at  Shang- 
hai and  certain  other  cities,  and  to  establish  warehouses,  churches, 
hospitals,  and  burial  grounds.  By  the  15th  clause  of  the  treaty  of 
1858  it  is  stipulated  that  all  questions  in  regard  to  rights  of  property 
or  person  arising  between  British  subjects  shall  be  subject  to  the  juris- 
diction of  the  British  authorities.  By  the  same  treaty  provision  is 
made  for  the  settlement  of  disputes  between  British  subjects  and 
Chinese  by  the  joint  action  of  the  British  consul  and  the  Chinese 
authorities,  and  also  for  the  Chinese  authorities  themselves  affording 
protection  to  the  persons  and  properties  of  British  subjects. 

The  treaties  do  not  contain  any  cession  of  territory  so  far  as  relates 
to  Shanghai,  and  the  effect  of  them  is  to  confer  in  favor  of  British 
subjects  special  exemptions  from  the  ordinary  territorial  jurisdiction  of 
the  Emperor  of  China,  and  to  permit  them  to  enjoy  their  own  laws  at 
the  specified  places.  Similar  treaties  exist  in  favor  of  other  European 
governments  and  the  United  States. 

By  virtue  of  these  treaties  and  of  the  statutes  6  &  7  Vict.  c.  80  and 
c.  94,  the  Crown  has,  by  the  Order  in  Council  of  the  9th  of  March, 
1865,  constituted  a  Supreme  Court  at  Shanghai. 

The  first  of  these  statutes,  intituled   "  An  Act  for  the  better  gov 


SECT.  I.]  IN    RE   TOOTAL'S    TRUSTS.  161 

enmieut  of  Her  Majesty's  subjects  resorting  to  China,"  enables  Her 
:^Iajesty  by  order  in  council  to  ordain  "  for  the  government  of  her 
subjects  within  the  dominion  of  the  Emperor  of  China,  or  being  within 
anv  ship  or  vessel  at  a  distance  of  not  more  than  one  hundred  miles 
from  the  coast  of  China,"  any  law  or  ordinance  as  effectually  as  any 
such  law  or  ordinance  could  be  made  by  Her  :Majesty  in  council  for 
the  government  of  her  subjects  within  Hong  Kong  which  had  been 
ceded  to  Her  Majesty.  The  second  of  the  statutes,  commonly  known 
as  the  Foreign  Jurisdiction  Act,  after  reciting  that  by  treaty,  capitula- 
tion, grant,  usage,  sufferance,  and  other  lawful  means.  Her  Majesty 
had  power  and  jurisdiction  within  divers  countries  and  places  out  of 
her  dominions,  and  that  doubts  had  arisen  how  far  the  exercise  of  such 
powers  and  jurisdiction  was  controlled  by  and  dependent  on  the  laws 
and  customs  of  the  realm,  enacts  that  Her  Majesty  may  exercise  any 
power  or  jurisdiction  which  she  then  had,  or  at  any  time  thereafter 
might  have,  within  any  country  or  place  out  of  her  dominions  in  as 
auPple  a  manner  as  if  she  had  acquired  such  power  or  jurisdiction  by 
the  cession  or  conquest  of  territory.  The  order  in  council  by  wliich 
the  Supreme  Court  was  established,  provides  that  all  Her  Majesty's 
jurisdiction  exercisable  in  China  for  the  judicial  hearing  and  determina- 
tion of  matters  in  difference  between  British  subjects  or  between  for- 
eigners and  British  subjects,  or  for  the  administration  or  control  of  the 
property  or  persons  of  British  subjects,  shall  be  exercised  under  or 
according  to  the  provisions  of  the  order  and  not  otherwise.  It  further 
provides  that  subject  to  the  provisions  of  the  order  the  civil  jurisdic- 
tion shall,  as  far  as  circumstances  admit,  be  exercised  upon  the  prin- 
ciples of  and  in  conformity  with  the  common  law,  the  rules  of 
equity,  the  statute  law,  and  other  law  for  the  time  being  in  force  in 
and  for  England.  The  Supreme  Court  is  a  court  of  law  and  equity, 
and  a  court  for  matrimonial  causes,  but  without  jurisdiction  as  to 
dissolution  or  nullity  or  jactitation  of  marriage.  It  is  a  court  of 
probate,  and  as  such  "as  far  as  circumstances  admit"  has  foi-  and 
within  China,  with  respect  to  the  property  of  British  subjects  having 
at  the  time  of  death  "their  fixed  places  of  abode  in  China,"  all  such 
jurisdiction  as  for  the  time  being  belongs  to  the  Court  of  Probate  in 
England.  It  has  jurisdiction  for  the  safe  custody  of  the  property  of 
British  subjects  not  having  at  the  time  of  death  their  fixed  abode  in 
China  or  Japan. 

The  exceptions  from  the  jurisdiction  of  the  ccurt  as  a  matrimo- 
nial court  in  regard  to  dissolution,  nullity,  or  jactitation  of  marriage 
are  important,  and  the  effect  of  them  is  apparently  to  leave  English 
men  subject  to  the  jurisdiction  of  the  court  for  matrimonial  causes  in 
England  in  respect  of  the  excepted  matters. 

Upon  these  facts  it  is  contended  for  the  petitioners  that  there 
exists  at  the  foreign  port  of  Shanghai  an  organized  comninnity  of 
British  subjects  independent  of  Cliincse  law  and  exenqjt  from  Chinese 
jurisdiction,  and  not  amenable  to  tlic  onlinary  trilmnals  of  this  conn- 


162  IX  KE  tootal's  trusts.  [chap,  it. 

try,  but  bound  together  by  law  which  is  English  law,  no  doubt,  but 
English  law  with  this  difference,  that  the  English  revenue  laws  do  not 
form  part  of  it,  and  that  by  residence  and  choice  the  testator  became 
a  member  of  this  community,  and  as  such  acquired  an  Anglo-Chinese 
domicile. 

The  authorities  cited  in  support  of  this  contention  for  an  Anglo- 
Chinese  domicile  relate  to  the  Anglo-Indian  domicile  of  persons  in 
the  covenanted  service  of  the  East  India  Company.  These  authori- 
ties are  generally  admitted  to  be  anomalous.  Dicey  on  Domicile,  pp. 
140,  141,  337.  They  are  explained  by  Lord  Hatherley  in  his  judg 
meut  in  Forbes  v.  Forbes,  Kay,  341,  and  by  Lord  Justice  Turner  in 
Jopp  V.  Wood,  4  D.  J.  «fe  S.  616.  The  point  that  the  (inimus  manendi 
was  inferred  in  law  from  the  obligation  to  serve  in  India  as  stated  by 
Lord  Hatherley,  has  no  bearing  on  the  case  before  me,  in  which  the 
evidence  is  sufficient  for  general  purposes  to  establish  the  animus 
manendi.  But  the  observations  of  Lord  Justice  Turner  that  the  East 
India  Company  was  regarded  as  a  foreign  government  are  material. 
He  says,  Ibid.  623:  "At  the  time  when  those  cases  [on  Anglo-Indian 
domicile]  were  decided,  the  government  of  the  East  Indian  Company 
was  in  a  great  degree,  if  not  wholly,  a  separate  and  independent  gov- 
ernment foreign  to  the  government  of  this  country,  and  it  may  well 
have  been  thought  that  persons  who  had  contracted  obligations  with 
such  government  for  service  abroad  could  not  reasonably  be  consid- 
ered to  have  intended  to  retain  their  domicile  here.  They,  in  fact, 
became  as  much  estranged  from  this  country  as  if  the}^  had  become 
servants  of  a  foreign  government." 

Lord  Stowell  in  his  judgment  in  the  Indian  Chief  shows  that  in 
his  time  the  sovereignty  of  the  Gi*eat  Mogul  over  the  British  territo- 
ries in  India  was  merely  nominal,  being,  as  he  says,  occasionally 
brought  forward  for  purposes  of  policy,  and  that  the  actual  authority 
of  government  over  these  territories  was  exercised  with  full  effect  by 
this  country,  and  the  East  India  Company,  a  creature  of  this  country. 
His  observation  as  to  the  authority  of  government  being  exercised  by 
this  country  is  not  really  inconsistent  with  the  passage  above  cited 
from  Lord  Justice  Turner's  judgment.  Lord  Stowell  was  not  address- 
ing himself  to  the  particular  point  for  which  I  have  quoted  Lord  Jus- 
tice Turner's  judgment.  Although  the  government  of  British  India 
was  English,  being  carried  on  principally  by  the  agency  of  the  char- 
tered company,  it  was  for  all  practical  purposes  a  distinct  govern- 
ment from  that  of  Great  Britain,  and  in  that  sense  it  was,  as 
Lord  Justice  Turner  says,  regarded  as  a  foreign  government.  At 
Shanghai  there  is  a  British  consul,  residing  there  by  virtue  of  the 
treaties,  but  there  is  no  government  by  British  authoritj'  existing 
there,  and  there  is  nothing  which  can  be  regarded  as  a  separate  or 
independent  government,  and  the  analogy  which  the  petitioners  seek 
to  establish  with  an  Anglo-Indian  domicile  is  not  made  out. 

On  principle,  then,  can  an  Anglo-Chinese  domicile  be  established'^ 
The  British  community  at  Shanghai,  such  as  it  is,  resides  on  foreign 


SE(  T.  I.]  IX    RE    TOOTAL's    TRUSTS.  163 

territory;  it  is  not  a  British  colony,  nor  even  a  Crown  colony,  al- 
though by  the  statutes  above  referred  to  the  Crown  has  as  between 
itself  and  its  own  subjects  there  a  jurisdiction  similar  to  that  exer- 
cised in  conquered  or  ceded  territory. 

Residence  in  a  territory  or  country  is  an  essential  part  of  the  legal 
idea  of  domicile.  Domicile  of  choice,  says  Lord  Westbury  in  Udny 
y.  Udny,  Law  Rep.  1  H.  L.,  Sc.  458,  is  a  conclusion  or  inference 
which  the  law  derives  from  the  fact  of  a  man  fixing  voluntarily  his 
sole  or  chief  residence  in  a  particular  place  with  the  intention  of 
continuing  to  reside  there  for  an  unlimited  time.  He  speaks  of  resi- 
dence in  a  particular  place,  and  not  of  a  man  attaching  himself  to  a 
particular  community  resident  in  the  place.  In  Bell  v.  Kennedy,  Law 
Rep.  1  H.  L.,  Sc.  320,  he  uses  similar  expressions.  Domicile  is  an 
idea  of  the  law;  "it  is  the  relation  which  the  law  creates  between  an 
individual  and  a  particular  locality  or  country."  He  refers  to  locality 
or  country  and  not  to  a  particular  society  subsisting  in  the  locality 
or  country.  The  difference  of  law,  religion,  habits,  and  customs  of 
the  governing  community  may,  as  I  have  already  pointed  out,  be  such 
as  to  raise  a  strong  presumption  against  the  individual  becoming  domi- 
ciled in  a  particular  coinitry  ;  but  there  is  no  authority  that  I  am 
aware  of  in  English  law  that  an  individual  can  become  domiciled  as  a 
member  of  a  community  which  is  not  the  community'  possessing  the 
supreme  or  sovereign  territorial  power.  There  ma^'  be,  and  indeed 
are,  numerous  examples  of  particular  sects  or  communities  residing 
within  a  territory  governed  by  particular  laws  applicable  to  them  spe- 
cially. British  India  affords  a  familiar  illustration  of  this  proposition,, 
But  the  special  laws  applicable  to  sects  or  communities  ai*e  not  laws  of 
their  own  enactment,  they  are  merely  parts  of  the  law  of  the  governing 
community  or  supreme  power. 

It  maj'  well  be  that  a  Hindoo  or  Mussulman  settling  in  British  India, 
and  attaching  himself  to  his  own  religious  sect  there,  would  acquire  an 
Anglo-Indian  domicile,  and  by  virtue  of  such  domicile  would  enjoy  the 
civil  status  as  to  marriage,  inheritance,  and  the  like  accorded  by  the 
laws  of  British  India  to  Hindoos  or  Mussulmans,  and  sucii  civil  status 
would  differ  materiallv  from  that  of  a  European  settling  there  and 
attaching  himself  to  the  British  community.  But  the  civil  status  of 
ilie  Hindoo,  the  Mussulman,  and  the  pAiropean  would  in  each  case  be 
regulated  b}-  the  law  of  the  su[)reme  territorial  power. 

In  the  case  before  me  the  contention  is  for  a  domicile  which  ma}' 
not  improperl\'  l)e  termed  extratcrritoiial.  The  sovereignty'  over  the 
soil  at  Shanghai  remains  vested  in  the  Emperor  of  China  with  this 
exception,  that  he  has  by  treaty  bound  himself  to  permit  British  sub- 
jects to  reside  at  the  place  for  the  purposes  of  commerce  only,  without 
interference  on  his  part,  and  to  pcu'niit  the  Britisii  Crown  to  exercise 
jurisdiction  there  over  its  own  sul)j('(jts,  Ijiit  over  no  other  per.sons. 

Accoiding  to  the  petitioner's  argument  tiie  sul)jects  or  citizens  of  all 
the  foreign  states  who  enjoy  similar  treaty  privileges  would  (subject  to 
any  particular  excicplions  arising  from  the  law  of  their  own  country  in 


164  IN  RE  tootal's  trusts.  [chap.  II. 

relation  to  domicile),  acquire  under  circumstances  similar  to  those  in 
the  present  case  a  new  domicile  of  choice.  If,  for  instance,  a  citizen 
of  the  United  States  were  to  reside  at  Shanghai  with  the  intention  of 
remaining  there  permanently,  but  not  under  such  circumstances  as 
would  be  sufficient  to  rebut  the  strong  presumption  against  a  Chinese 
domicile,  and  were  to  attach  himself  so  far  as  he  could  to  one  of  the 
European  communities  there,  sa}',  for  an  instance,  the  British  com- 
munit}-,  he  would,  according  to  the  petitioner's  contention,  have  lost 
his  domicile  of  origin,  and  would  have  acquired  an  Anglo-Chinese 
domicile,  which  for  most  pi-actical  purposes  would  be  equivalent  to 
an  English  domicile.  In  my  opinion  he  would  not  acquire  such  a 
domicile. 

It  appears  to  me  that  there  is  no  substantial  difference  as  to  the 
question  I  am  considering  between  the  residence  of  a  British  subject  at 
Shangliai,  or  at  any  factory  in  Turkey  or  elsewhere,  or  the  East, 
whether  by  virtue  of  special  treaties,  capitulations,  sufferance,  or  the 
like.  But  such  factories  are  not  regarded  as  colonies  or  foreign  coun- 
tries for  the  purpose  of  domicile.  There  may  be  commercial  domicile 
there  in  times  of  war  witli  reference  to  the  law  of  capture,  b-ut  that  is 
altogether  a  different  matter. 

No  authority  except  those  i-elating  to  Anglo-Indian  domicile  has 
been  cited  in  support  of  the  petitioner's  contention  as  to  domicile.  In 
Maltass  v.  Maltass,  1  Rob.  Ecc.  80,  already  cited,  Dr.  Lushington 
admitted  to  probate  the  will,  valid  according  to  the  law  of  England,  of 
an  English  merchant  resident  at  a  British  factory  at  Smyrna.  He  held 
that  if  the  treaty  between  England  and  the  Porte  was  applicable  to 
British  merchants  resident  or  domiciled  in  the  ordinary  acceptation 
of  the  term  in  Smyrna,  the  provisions  of  the  treaty  decided  what  was 
to  be  done  in  the  case  of  succession  to  personal  estate,  namely,  that  it 
was  to  follow  the  law  of  England.  But  he  considered  that  the  deceased 
was  domiciled  not  in  a  colony,  but  in  England. 

In  the  argument  for  the  petitioners  great  reliance  was  placed  on  Ihe 
nature  and  extent  of  the  jurisdiction  of  the  court  at  Shanghai,  and  the 
fact  that  the  will  has  not  been  proved  in  England.  The  law  admin- 
istered by  the  court  at  Shanghai,  being  for  most  practical  purposes 
the  same  as  that  administered  in  England,  the  question  of  domicile  is 
likely  to  arise  only  in  exceptional  cases  like  the  present.  The  juris- 
diction conferred  on  the  Supreme  Court  at  Slianghai  is  merely  the 
jurisdiction  of  Her  Majesty  exercisable  in  China,  and  confined  to 
British  subjects.  It  is  not  exclusive  and  does  not  oust  the  jurisdiction 
of  Her  Majesty's  courts  in  England.  No  solid  reason  exists  that  I  can 
discover  for  holding  that  the  will  of  an  Englishman  "  whose  fixed  place 
of  abode  "  was  at  his  death  in  China,  could  not  be  admitted  to  probate 
by  the  Court  of  Probate  in  England.  I  may  observe  tliat  tlie  term 
"fixed  place  of  abode  "  is  not  equivalent  to  domicile.  The  teclmical 
term  "domicile  "  was,  it  appears  to  me,  purposely  avoided.  The  only 
distinction  between  this  case  and  Maltass  v.  Maltass,  1  Rob.  Ecc.  67, 
is  the  existence  at  Shanghai  of  an  English  Court  of  Probate.     Similar 


SECT.  I.]  IN    RE   TOOTAL'S    TliUSTS.  1G5 

courts  now  exist  in  the  Ottoman  dominions  and  in  Egypt.  In  fact  alj 
these  courts  are  consular  courts,  or  constituted  on  the  same  mode) 
with  more  or  less  jurisdiction. 

In  the  case  of  Attorney-General  v.  Napier,  6  Ex.  217,  letters  of 
administration  had  been  granted  by  the  courts  established  in  India, 
where  nearly  the  whole  of  the  intestate's  personal  estate  was  locally 
situate  at  his  death.  In  order  to  recover  a  comparatively  small  debt 
in  England,  administration  was  taken  out  in  this  country  also.  The 
mtestate's  domicile  was  in  England.  But  in  deciding  that  legacy  duty 
was  payable,  the  Court  of  Exchequer  proceeded  solely  on  the  domicile, 
and  did  not  even  advert  in  the  judgment  to  the  grant  of  administration 
in  England.  Evidently  that  fact,  as  well  as  the  fact  that  the  Indian 
court  had  jurisdiction  to  grant  and  had  granted  administration,  were 
considered  immaterial. 

If  an  Englishman  domiciled  in  England  dies  resident  abroad,  and 
no  part  of  his  assets  are  in  England,  and  no  probate  or  letters  of 
administration  are  taken  out  in  England,  there  may  be  great  difficulty 
in  asserting  the  Crown's  right  to  duty,  and  inasmuch  as  foreign  courts 
will  not  enforce  the  revenue  laws  of  this  country  the  difficulty  may  in 
some  cases  be  insuperable.  But  the  Crown's  right  cannot  depend  on 
the  greater  or  less  difficulty  in  pursuing  the  remedy.  In  the  case  before 
me  there  is  no  difficulty  in  giving  the  remedy,  since  the  fund  is  in 
court,  and  under  the  Legacy  Duty  Acts  this  court  or  its  officers  are 
bound  to  see  that  the  legacy  duty,  if  payable,  is  paid  before  the  fund 
is  parted  with. 

The  circumstance  that  the  will  has  not  been  proved  here  is  also 
immaterial.  It  has  been  proved  in  a  duly  constituted  British  court  of 
competent  jurisdiction,  and,  it  being  admitted  that  further  probate 
here  is  not  required,  it  follows  that  the  court  must  look  at  the  Shang- 
hai probate  before  distributing  the  fund.  This  disposes  of  the  argu- 
ment that  the  court  cannot  take  notice  of  an  alleged  will  of  personal 
estate,  unless  it  has  been  proved  in  this  country.  The  argument  which 
was  addressed  to  me,  founded  on  a  close  examination  of  the  various  pro- 
visions of  the  Legacy  Duty  Acts,  for  the  purpose  of  showing  that  they 
do  not  apply  in  the  circumstances  of  this  case,  was  substantially  the 
same  as  that  urged  in  tlie  House  of  Lords  in  Attorney-General  v. 
Forbes,  2  CI.  &  F.  48,  and  is  disposed  of  by  the  decisions  in  Thomson 
V.  Advocate-General,  12  CI.  &  F.  1,  and  in  Attorney-General  /•.  Forbes, 
as  explained  by  the  Court  of  Exchequer  in  Attorney-General  v.  Napier, 
6  Ex.  217. 

For  these  reasons  I  hold  that  there  is  no  such  thing  known  to  the  law 
as  an  Anglo-Chinese  domicile,  that  the  testator's  domicile  remained 
English,  and  that  the  circumstances  are  not  sufficient  to  create  any 
exception  from  the  broad  principle  that  legacy  duty  is  payable  when 
the  domicile  is  British.    Consequently  I  think  that  the  duty  is  payable  ' 

1  Approved,  Ah,l-ul-Mes.sih  v.  Farra,  13  App.  C.-is.  4,'51  (18vS8).  Tlie  residence  re- 
lied upon  to  establish  doiiiicile  in  tliat  case  was  at  Cairo,  as  a   protected   Uritish  sub- 


166  IN    EE   CRAIGNISH. 


CHAP.  II. 


In  re  CRAIGNISH. 

High  Court  of  Justice  :  Court  of  Appeal.     1892. 

[Reported  [1892]  3  Chancerj/,  180.] 

Chitty,  J.^  The  plaintiff  claims  to  be  entitled  beneficially  to  one- 
half  of  the  propert}-  which  passed  under  the  will  of  his  late  wife.  .  .  . 
He  bases  his  claim  on  two  grounds,  —  first,  he  alleges  that  during  the 
marriage  his  own  domicile,  and  consequently  his  wife's  domicile,  was 
Scotch  ;  and,  secondly,  that  according  to  the  law  of  Scotland  he  is 
entitled  beneficially  to  one-half  of  the  £20.000  which  she  appointed,  and 
one-half  of  her  residuary  estate.  ...  In  order  to  establish  that  his 
own  domicile  was  Scotch,  the  plaintiff  gave  evidence  as  to  the  domicile  of 
his  great-grandfather  and  his  grandfather.  When  tliis  evidence,  chiefly 
documentary,  had  been  put  in,  it  was  admitted  by  the  defendants'  coun- 
sel that  the  plaintiff  had  proved  that  the  domicile  of  both  these  ancestors 
was  and  continued  until  their  deatiis  to  be  Scotch  ;  consequently,  the 
plaintiffs  father,  being  the  legitimate  son  of  a  man  domiciled  in  Scot- 
land, had  at  his  birth  a  Scotch  domicile.  The  contest  then  starts  from 
this  point.  In  the  course  of  it  many  questions  were  raised,  some  of 
law,  and  some  of  fact,  including  the  just  inferences  to  be  drawn  from 
the  facts  proved.  In  view  of  the  conclusion  at  which  1  have  arrived 
on  the  facts  subsequent  to  the  plaintiff's  marriage  with  Miss  Meeking, 
I  shall  pass  bv  many  of  the  questions  that  were  raised  ;  I  shall  begin 
with  a  short  statement  of  the  facts  from  the  plaintiff's  birth  down  to 
that  marriage.  He  was  born  on  the  24th  of  December,  1836,  at  Sydney,  in 
New  South  Wales.  His  father  was  then  an  officer  in  the  21st  Regiment, 
serving  with  his  regiment  stationed  there.  His  father  and  mother  had 
married  in  that  colony  in  1834.  His  mother  was  the  daughter  of  Sir 
Alexander  Macleay,  Speaker  to  the  Legislative  Council  at  Sydnev. 
On  the  15th  of  December,  1837,  the  plaintiff's  father  retired  from  the 
army  by  sale  of  his  commission.  He  remained  in  the  colon}'  for  some 
few  3-ears  afterwards.  He  became  police  magistrate  at  Parramatta,  and 
subsequently,  about  1838  or  1839,  Colonial  Treasurer.  He  gave  up  his 
appointment  and  left  the  colony  about  1841.  In  that  3-ear  he  arrived 
in  England  with  his  wife  and  family,  including  the  plaintiff.  He  sub- 
sequently visited  Scotland,  and,  after  a  short  stay  in  Manchester,  he 
came  with  his  wife  and  famih'  to  London  in  1846,  and  continued  to 
reside  there  until  his  death.  In  August.  1846,  he  was  appointed  secre- 
tary to  the  London  and  South-Western  Railway  Company.  The  salary 
was  considerable  and  sufficient  for  the  support  of  his  famih'  and  himself. 
He  became  a  member  of  the  Junior  United  Service  Club.    In  February, 

ject.  The  Court  said:  "  Residence  in  a  foreign  state,  as  a  privileged  meraber  of  an 
ex-territorial  community,  although  it  may  be  effectual  to  destroy  a  residential  domicile 
acquired  elsewhere,  is  ineffectual  to  create  a  new  domicile  of  choice."  —  Ed. 

1  The  opinion  only  is  given :  it  sufficiently  states  the  case.  Only  so  much  of  tha 
opinion  as  deals  with  the  question  of  domicile  is  given. —  Ed. 


SECT.  I.]  IN   RE    CRAIGNISH.  167 

1848,  he  purchased  62,  Chester  Square,  for  the  remainder  of  a  long 
lease,  and  went  to  reside  there  with  his  wife  and  family,  and  he  con- 
tinued to  resi«le  there  with  them  until  his  death,  which  occurred  on  the  4th 
of  October,  1848.  Being  in  ill-health  he  had  resigned  his  office  of  secre- 
tary in  the  previous  September.  lie  made  his  will  on  the  28th  of  that 
month,  describing  himself  as  of  62,  Chester  Square,  in  the  county  of 
Middlesex.  The  residue  of  his  property  remaining  after  payment  of 
his  debts  amounted  only  to  a  few  hundred  pounds,  which  he  bequeathed 
to  his  wife.  He  had  lost  his  money  by  the  failure  of  the  Western  Bank 
of  Australia,  as  he  learnt  on  his  arrival  in  England  in  1841. 

Upon  these  facts  it  was  argued  for  the  defendants,  —  first,  that  the 
plaintiff's  father  was  at  the  time  of  the  plaintiff's  birth  domiciled  iu 
New  South  Wales,  and  consequently  that  the  plaintiff's  domicile  of  birth 
was  in  that  country  ;  and,  secondly,  that  if  the  plaintiff's  father  was  not 
then  domiciled  in  New  South  Wales,  he  was  domiciled  in  England  at 
the  time  of  his  death,  and  thereupon  it  was  argued  for  the  defendants, 
us  a  proposition  of  law,  that  domicile  of  origin,  rightly  understood,  does 
not  mean  domicile  at  birth  ;  but  the  last  domicile  imposed  by  the  choice 
of  the  father,  or  other  the  guardian  of  an  infant,  who  has  authority  to 
change  the  domicile  of  an  infant  by  changing  his  own.  This  proposition 
of  law  was  also  raised  in  reference  to  certain  facts  (which  I  have  not 
noticed)  relating  to  the  plaintiff's  father  while  under  age.  It  was  urged 
that  great  inconvenience  and  hardship  would  arise  by  holding  that 
domicile  of  origin  meant  simply  domicile  at  birth,  and  a  case  was  put  by 
way  of  illustration.  Suppose,  it  was  said,  that  at  the  time  of  the  birth 
of  "his  child  an  Englishman  is  domiciled  in  France,  that  shortly  after- 
wards, say  within  three  months  of  the  birth  of  the  child,  the  father 
breaks  up  his  home  in  France  and  returns  to  England,  his  own  domicile 
of  ori<Tin,  and  continues  to  live  settled  there  until  the  child  comes  of 
age  —  it  was  urged  that  it  would  be  a  great  hardship  on  this  English 
child  to  hold  that  throughout  the  rest  of  his  life  there  was  clinging  to 
him  a  French  domicile  ready  to  arise  whenever  he  abandoned  the  Eng- 
lish domicile,  or  any  subsequent  domicile  acquired  by  his  own  choice. 
But  this  case  can  be  met  by  a  parallel  counter-case.  Suppose  an  Eng- 
lishman domiciled  in  Englan<l  at  his  child's  birth  retains  his  English 
domicile  until  say  within  three  months  of  the  child's  coming  of  age,  and 
then  breaks  up  his  English  home  and  acquires  a  domicile  in  France, 
which  he  retains  until  the  child  comes  of  age  —  according  to  the  argu- 
ment for  the  defendants  the  domicile  of  origin  of  this  English  child  would 
be  French.  But  inasmuch  as  I  intend  to  decide  this  case  on  the  assump- 
tion that  the  plaintiff's  domicile  of  origin  was  Scotch,  I  pass  by  these 
questions  of  fact  and  law  without  expressing  any  opinion  upon  them, 
except  by  saying,  as  to  the  defendants'  proposition  of  law,  that  I  am 
not  i)ersuaded  that  it  is  well  founded,  or  that  it  can  be  supported  upon 
a  due  examination  of  the  authorities  bearing  on  the  sul)ject. 

The  plaintiff  was  in  his  twelfth  year  at  his  father's  death.      He  was 
fdneatcd  for  the  military  service,  chiefly  in  England,  but  partly  in  Ger- 


168  IN    RE   CRAIGNISH.  [CHAP.  II. 

man}-,  where  his  mother  was  residing.    He  obtained  a  militar}^  cadetship 
in  the  service  of  the  East  India  Company,  went  out  to  India,  and  was 
appointed  in  1854  to  the  7th  Bombay  Native  Infantry,  one  of  the  com- 
pany's regiments.      He  remained  in  the  company's  service  until  the 
govei'nment  of  India  was  transferred  to  the  Crown  by  the  act  passed 
in    1858.     He  then  became   a  niiUtary  officer  under  the  Crown.     In 
1869  he  finally  left  India,  and  in  1871  he  retired  from  military  service 
on  a  pension.     From  1854  to  1869  he  was  constantly  in  active  service. 
He  served  in  the  Persian  and  other  wars,  and  in  the  Mutiny  he  was 
an  officer  in  Jacob's  Horse.     On  his  quitting  India  finally  in  1869,  he 
abandoned  the  Anglo-Indian  domicile  which  he  had  acquired  ;  thereupon 
his  domicile  of  origin,  which  I  assume  to  be  Scotch,  revived,  and  this 
domicile  continued  unless  and  until  he  acquired  a  new  domicile  by  choice. 
The  burden  of  proving  that  he  acquired  a  new  domicile  by  choice  is  upon 
the  defendants.     From  1869  to  1883  his  career  may  be  briefly  stated. 
During  this  period  London  seems  to  have  been  his  headquarters.    From 
London  he  generally  started,  and  to  London  he  generally  returned  on 
and  after  his  numerous  expeditions.     He  was  continually  moving  from 
place  to  place.     Down  to  1877  his  movements  were  principally  in  the 
direction  where  there  was  war  or  rumor  of  war.     He  was  the  mili- 
tary correspondent  of  a  leading  London  newspaper  —  the  "  Standard  " 
—  during  the  Franco-German  War;  afterwards  he  was  roving  corre- 
spondent for  that  newspaper.     He  was  called  back  to  England  by  the 
"  Standard,"  and  acted  as  military  correspondent  for  that  paper  at  the 
manoeuvres  on  Salisbury  Plain  in  1872.    He  was  present  in  the  Spanish 
War  in  1873.  as  correspondent  for  an  English  newspaper  called  the 
"  Hour,"  which  had  but  a  brief  existence.     I  pass  by  the  disturbances 
in   Bosnia  and  Herzegovina  in   1875,  the  Servian  War  in   1876,  the 
Turkish  War  in  1877,  and  the  siege  of  Batoum  in  the  same  year,  in  all 
of  which  he  played  some  part,  or  had  some  concern.     After  1877  his 
expeditions  in  connection  with  war  appear  to  have  ceased.     In  1878  he 
was  at  Milan  and  Paris,  and  then  he  came  to  London  ;  and  thence  he 
went  on  a  visit  to  Scotland  and  Ireland.    In  May,  1879,  he  was  divorced 
from  his  first  wife  at  her  suit  by  the  decree  of  the  High  Court  in  Lon- 
don, made  absolute  in  the  following  December.     He  had  married  her 
in  1862  while  in  India.     In  1879  he  was  living  on  the  banks  of  the  river 
Thames,  not  far  from  London.     In  1881  he  travelled  to  Sydney,  his 
birthplace,  and  returned  to  London  about  the  end  of  that  year.     In 
1882  he  received  from  the  Duke  of  Saxe-Coburg-Gotha  the  dignity  of 
Baron  von  Craignish,  and  in  1883  he  obtained  the  royal  license  to  use 
that  title  in  this  country.    It  is  said,  however,  that  his  claim  to  use  the 
title  is  not  recognized  in  Scotland.     The  selection  of  Craignish  for  his 
title  has  apparently  given  great  offence  to  an  elder  branch  of  the  Camp- 
bell family  in  Scotland.    The  estate  of  Craignish  in  Scotland  has  passed 
away  from  the  Campbells.    The  plaintiff  is  not  a  Campbell  of  Craignish. 
His  family  is  Campbell  of  Laggan  Lochan.    Neither  the  plaintiff  nor  his 
father  ever  held  any  land  in  Scotland.     T  have  mentioned  this  circum- 


SECT.  I.]  IN   KE    CRAIGNISH.  169 

stauce  as  to  the  grant  of  the  dignity  by  a  foreign  prince  because  the 
plaintilf  s  connsel  placed  some  reliance  on  it ;  but  it  appears  to  me  to 
have  no  bearing  on  the  question  of  domicile. 

I  now  come  to  the  critical  period  which  extends  from  his  marriage 
with  Miss  Meeking  until  her  death.  The  marriage  took  place  at  the 
British  Embassy  in  Paris  on  the  26th  of  March,  1883.  He  was  then  in 
his  forty-seventh  year  —  a  time  of  life  when  a  man  is  less  disposed  to 
rove  and  more  inclined  to  settle  down,  particularly  when  he  has  mar- 
ried a  rich  wife.  He  is  described  in  the  marriage  certificate  as  "  of  the 
parish  of  Sydney,  in  the  county  of  New  South  Wales,  then  residing  at 
Pan's  Hotel,  Brighton,"  and  she  is  described  as  "  of  the  parish  of  St. 
Andrew's,  Holborn,  in  the  county  of  Middlesex."  They  seem  to  have 
started  from  London  for  the  marriage  in  Paris.  After  the  marriage 
they  went  on  a  trip  to  Nice,  and  from  Nice  they  returned  to  London. 
There  they  stayed  at  Fisher's  Hotel,  Clifford  Street.  That  was  in  the 
middle  of  1883.  He  bought  a  yacht  at  Cowes,  which  his  wife  paid  for 
and  presented  to  him.  The  yacht  was,  and  continued  to  be,  stationed 
at  Cowes.  His  property  consisted  of  his  pension  and  some  articles  of 
ornament  or  the  like,  which  he  had  apparently  collected  in  his  wander- 
ings. He  had  no  other  property  except  the  yacht.  During  the  yacht- 
ing seasons  of  the  years  1883,  1884,  and  1885,  the  yacht  was  used  by 
him,  sometimes  with  and  sometimes  without  his  wife,  for  various  tri[)s 
to  Scotland,  the  Mediterranean,  and  the  Baltic.  During  the  same 
period  they  made  visits  to  the  Riviera,  Paris,  and  Boulogne,  Germany, 
and  the  New  Forest  in  England,  generally,  but  not  always,  together. 
There  was  some  little  confusion  in  the  plaintiff's  evidence  as  to  the 
dates  and  order  of  these  trips  and  visits  ;  but  the  exact  dates  and  order 
are  not  material.  During  this  period  the  plaintiff  and  his  wife  were 
frequently  in  London,  staying  at  hotels  and  furnished  rooms.  What- 
ever expeditions  they  made,  the  plaintiff  and  his  wife  (as  he  stated  in 
his  evidence)  always  came  back  to  London.  On  the  4th  of  January, 
1886,  the  plaintiff  signed  an  agreement  for  taking  No.  2;'),  Albert 
Gate,  on  a  tenancy  commencing  on  the  15th  of  that  month.  He 
entered  into  possession  accordingly,  and  resided  there  with  his  wife 
until  their  separation,  which  took  place  in  June  or  July  following. 
The  plaintiff,  in  his  evidence,  seemed  desirous  of  ascribing  the  taking 
of  this  house  solely  to  his  wife;  he  had  apparently  forgotten  that  he 
had  himself  signed  the  agreement,  and  that  in  a  letter  written  by  him 
to  her  after  the  separation,  dated  Piccadilly,  he  had  spoken  of  the 
house  emphatically  as  "my  house."  The  taking  of  this  house  wa? 
his  own  act,  even  if  he  took  it  at  the  request  of  his  wife.  The  hous< 
was  taken  with  the  furniture  therein.  His  wife  hud  furniture  storec\ 
at  a  repository;  some  of  this  was  removed  to  the  house,  but  the  bulk 
remained  at  the  repository.  The  articles  which  belonged  to  him 
were  removed  to  the  house.  In  the  agreement  he  is  described  as  of 
the  .Junior  United  Service  Club,  S.  W.  The  rent  was  £.')()()  a  year, 
and  the  term   was   foi-  a  year  cert:iin,  with  an  option  to  the  plaintilT 


170  IN    RE    CRAIGNISH.  [CHAP.  II. 

lo  continue  the  tenancy  for  another  year,  and  if  the  house  was  not 
required  by  the  landlord,  then  for  a  further  term.  Some  time  after 
the  separation  of  the  plaintiff  and  his  wife  this  house  was  given  up. 
After  their  separation  they  never  lived  together  again.  There  were 
protracted  negotiations  carried  on  by  their  solicitors  for  a  deed  of 
separation.  They  were  broken  off  before  her  death,  because  the 
plaintiff  would  not  accept  the  conditions  on  which  it  was  proposed  on 
her  part  that  an  annuity  should  be  settled  on  him.  Her  proposal 
was  that  the  annuity  should  be  a  personal  provision  for  hie  mainte- 
nance, and  therefore  determinable  on  bankruptcy  or  alienation;  the 
plaintiff  required  that  the  annuity  should  be  free  of  all  restrictions, 
so  that  he  could  deal  with  it  and  raise  money  upon  it.  These  negotia- 
tions were  conducted  throughout  on  the  footing  or  tacit  assumption 
that  the  law  applicable  to  the  relation  of  the  parties  was  the  law  of 
England.  The  draft  which  passed  between  the  solicitors  was  in 
English  form,'  no  suggestion  was  made  from  beginning  to  end  by 
or  on  behalf  of  the  plaintiff  of  a  Scotch  domicile,  or  that  the  law  of 
Scotland  had  any  bearing  on  the  rights  of  the  plaintiff  and  his  wife. 
But,  in  justice  to  the  plaintiff,  it  is  proper  to  add  that  he  was  not 
designedly  suppressing  or  keeping  back  any  claim.  He  was  not 
aware  that  he  had  any  before  the  memorable  conversation  with  his 
barrister  friend  after  his  wife's  death.  Still,  the  circumstance  that 
these  negotiations  were  conducted  on  the  footing  or  assumption  that 
the  law  of  England  applied  has  some  bearing  on  the  question  of  domi- 
cile. The  object  of  the  law  in  searching  for  and  ascertaining  a  man's 
domicile  is  to  ascertain  the  particular  municipal  law  by  which  his 
private  rights  are  regulated  and  defined.  The  circumstance  that  a 
foreigner  residing  in  England  by  his  conduct  adopts  the  law  of  Eng- 
land as  the  law  whereby  his  private  rights  are  defined  is  relevant  evi- 
dence on  the  question  of  his  domicile.  Doucet  v.  Geoghegan,  9  Ch.  D. 
441.  The  assumption  in  these  negotiations,  that  the  relative  rights 
of  the  plaintiff  and  his  wife  were  governed  by  the  law  of  England, 
falls  far  short  of  an  intentional  adoption  of  that  law,  and  if  it  stood 
alone  it  would  be  of  trifling  import,  but,  taken  in  connection  with  the 
other  circumstances  of  the  case,  it  is  not  altogether  without  weight. 
A  few  more  facts  remain  to  be  noticed.  The  plaintiff  w^as  during 
the  marriage  a  member  of  three  clubs  in  London,  —  the  Junior  United 
Service  Club,  the  Royal  Thames  Yacht  Club,  and  the  Raleigh. 
Shortly  after  his  wife's  death  he  became  a  member  of  the  Arts  and 
Letters  Club,  also  in  London.  His  wife  was  a  member  of  the  Albe- 
marle Club  in  London.  He  never  had  a  club  in  Scotland.  After  the 
separation  he  continued  to  reside  chiefly  in  Loudon.  He  had  lodg- 
ings or  furnished  apartments  in  Suffolk  Street,  in  Bedford  Gardens, 
Kensington  (where  he  stayed  about  a  year),  in  Vauxhall  Bridge  Road, 
and  in  Cheniston  Gardens,  where  he  was  when  his  wife  died.  He 
had  a  studio  in  Cheniston  Gardens.  He  made  a  short  expedition  to 
Cairo,  and  he  went  round  Scotland  in  the  Norham  Castle,  accompany. 


SECT.  I.]  IN   RE    CRAIGNISH.  17l 

ing  the  ocean  yacht  race  of  1887  as  one  of  the  Thaiu'es  Yacht  Club 
committee.     This  was    the   only  visit,   if    it   can  be  called  a  visit, 
which  he  paid  to  Scotland  after  the  separation.     lu  order  to  show 
that  his  domicile  was  Scotch,  or,  at  all  events,  that  it  was  not  Eng- 
lish, the  plaintiff  gave  in  evidence  conversations  which  he  had  with 
his   wife   concerning    Craignish.     All  these  conversations   occurred 
before  he  took  No.  25,  Albert  Gate.     The  final  conversation  was  at 
Fisher's  Hotel,  London.     The  plaintiff  said  his  wife  often  talked  to 
him  about  the  possibility  of   his  being  able  to  buy  Craignish.     A 
friend  had  made  inquiries  and  reported  the  result.     The  owner  evi- 
dently did  not  intend  to  part  with  it  at  any  price.     He  put  a  fancy 
price  upon  it;  according  to  the  plaintiff's  recollection  it  was  £80,000, 
To  use  the  plaintiff's  own  expression,  "That  settled  the  matter  of 
Craignish."     It  put  an  end  to  all  ideas  of  his  wife  buying  it.     He 
never  had  any  idea  of  purchasing  it  himself;  as  he  truly  stated,  he 
had  no  money.     It  never  really  was  within  the  range  of  practicability 
that  even  his  wife  should  buy  it.     The  £65,000  was  so  tied  up  that 
she  could   not  dispose  of  any  part  of  the  capital   during  her   life. 
She  had  a  legacy  of  some  thousand  pounds  under  her  father's  will, 
but  there  was  no  evidence  to  show  how  much  of  this  remained  in  her 
hands  at  the  marriage.     That  a  man  with  Scottish   blood  in  his  veins 
should    have   dreams  of   Scotland  and    an  ancestral    estate   there  is 
natural  enough.     This  was  but  a  waking  dream,  and  the  dream,  such 
as  it  was,  was  the  dream  of  his  wife,  and  not  of  himself.     A  dream 
or  a  mere  hope  or  a  wish  for  the  impossible  is  not    an  intention. 
There  was  no  intention  to  buy  Craignish.      Whatever  idea  there  was 
on  the  subject,  it  had  finally  vanished  before  the  plaintiff  took  the 
house  at  Albert  Gate.     The  plaintiff  gave  also  some  evidence  as  to 
his  wife's  making  inquiries  in  regard  to  some  other  places  in  Scot- 
land on  their  visits  to  that  country,  but  nothing  came  of  these  inqui- 
ries, and  these  matters  all  came  to  an  end  before  the  house  at  Albert 
Gate  was  taken. 

There  is  one  peculiarity  in  this  case  which  does  not  often  arise  in 
questions  of  domicile.  Generally  the  inquiry  relates  to  the  domicile 
of  a  person  who  is  dead.  In  this  case  the  question  relates  to  the 
domicile  of  the  plaintiff,  a  living  person.  He  gave  evidence  as  to 
his  past  intention  during  his  wife's  life.  Asked  by  his  own  counsel 
whether  he  formed  any  intention  to  make  a  settled  home  in  England, 
he  said,  "No,"  and  subsequently  he  said:  "The  only  place  I  ever  had 
any  serious  intention  of  making  a  home,  if  I  could,  was  Scotland." 
In  cross-examination  he  had  admitted  that  there  was  no  part  of  the 
L'nited  Kingdom  where  he  had  anything  which  could  be  called  a 
home  but  in  London;  that  any  home  ho  had  was  in  London;  and  that 
certainly  he  had  no  other  home  hut  in  London.  As  to  the  evidence 
of  the  plaintiff  himself  on  the  subject  of  his  past  intention,  it  must 
be  accepted  with  a  very  consi(l('ral)le  reserve.  A  plaintiff  has 
naturally,    on    an    issii<-    like    the    present,    a    very   stron<r    bias  cul- 


172  IN    KE   CRAIGNISH.  [CHAP.  II. 

culated   to   influence  his  mind,   and  he   is,    moreover,    speaking   of 
his  past  intention,    and   not   merely   of  past   declarations  of  inten- 
tion.     (See  the  observations  of  Lord  Cairns  in  Bell  v.  Kennedy,  Law 
Rep.  1   H.  L.,  Sc.   307,   313.)     Considerable  light  is  thrown  on  the 
question  whether  the  plaintiff  did  not  himself  consider  that  his  home 
was  in  England  by  some  of  his  own  letters  written  to  his  wife  after 
the  separation.      In  these  letters,  written  at  various  dates  and  from 
various  places,  the  term  "home"  occurs  seven  times.      I  refrain  from 
quoting  at  length  the  passages  in  the  letters  or  the  cross-examiuation 
upon  them.     They  are,  so  far  as  they  go,  contemporaneous  declara- 
tions of  intention.     The  term  "home"  may  be,  and  is,  often  used 
in  different  senses.      An  Englishman  permanently  settled  in  one  of 
the  English  colonies  may  without  impropriety  speak  of  going  home 
when  he  is  paying  a  visit  to  England.     If  asked  to  explain  himself, 
he  would  probably  say  that  he  used  the  term  in  reference  to  the  mother 
country  from  which  he  and  his  brother  colonists  had  emigrated  or 
originally  sprung,   and  that  his    own  true  home  was  in  the  colony. 
So  in  familiar  conversation  or  in  familiar  letters  the  term  may  be 
used  in  a  sense  (varying  more  or  less  according  to  the  accuracy  of  the 
speaker  or  writer  from  the  ordinary  popular  sense)  of  the  place  where 
a  man  has  his  abode  or  is  settled.     When  a  traveller  speaks  of  return- 
ing home  he  uses  the  term  in  the  ordinary  popular  sense.      In  a  letter 
of  the  plaintiff's  (January  23,  1888),  written  from  Corfu,  where  the 
plaintiff   charges    his   wife    with  "breaking  up   our    home,"  he  was 
referring  to  their   home    at  Albert  Gate.     This  he  admitted.      In  a 
passage  in  the  same  letter,  where  he  asks  "How  can  1  go  home?"  he 
is  referring  to  London,  or  at  all  events  to  England.      In  an  undated 
letter  from  Alexandria,  where  the  term  "home  "  occurs  three  times, 
he  uses  it  in  the  same  sense  of  London  or  England.     In  the  course  of 
his  examination-in-chief   the  plaintiff  used  the  term  "home"  eight 
times,  generally,  however,  following  the  lead  of  his  counsel.      When 
he  is  speaking  of  home  before  he  finally  quitted  India,  it  is  clear 
that  he  is  using  the  term  in  the  loose  sense  in  which  an  Anglo-Indian 
may  speak  of  this  country  as  his  home.     After  he  left  India,  he  uses 
it  generally  in  reference  to    England  as  the    place    from    which    he 
started  and  to  which  he  returned. 

I  have  surveyed  the  evidence  at  some  length.  In  the  result,  and  on 
the  assumption  that  the  plaintiff's  domicile  of  origin  was  Scotch,  I 
find  that  the  plaintiff  acquired  by  choice  a  domicile  in  England  from 
the  time  when  he  went  to  reside  with  his  wife  in  the  house  at  Albert 
Gate,  and  that  the  domicile  thus  acquired  was  not  afterwards  aban- 
doned, but  continued  to  the  death  of  his  wife.  The  evidence  of  the 
fact  of  residence  here  is  amply  sufficient.  The  true  inference  to  be 
drawn  from  the  evidence  of  the  circumstances  surrounding  and 
accompanying  the  fact  of  the  residence  here,  when  taken  in  connection 
with  the  plaintiff's  own  letters  and  the  other  facts  of  the  case  viewed 
as  a  whole,  appears  to  me  to  be  that  the  plaintiff  formed  the  intention 


SECT.  I.]  IN    KE   CRAIGNISH.  173 

of  residing  heie  iudefinitely.  There  was  the  animus  revertendi  and 
manendi.  According  to  Story's  definition,  that  place  is  properly  the 
domicile  of  a  person  in  which  his  habitation  is  fixed  without  any 
present  intention  of  removing  therefrom.  Story's  Conflict  of  Laws, 
sect.  43.  There  was  no  present  intention  on  the  plaintiff's  part  to 
remove  from  London.  London,  which  was  at  first  merely  his  head- 
quarters, afterwards  became  his  home;  he  treated  it  as  his  home, 
and  called  it  his  home,  more  particularly  he  considered  the  house 
at  Albert  Gate,  where  he  lived  with  his  wife,  as  his  home.  A  man 
may  be  in  fact  homeless,  but  he  cannot  in  law  be  without  a  domicile. 
Subject  to  this  distinction  the  term  "home,"  in  its  ordinary  popular 
sense,  is  practically  identical  with  the  legal  idea  of  domicile.  Dicey 
on  Domicile,  pp.  42-55.  Living  in  lodgings  and  changing  the 
lodgings  from  time  to  time  are  circumstances  to  be  taken  into  consid- 
eration on  a  question  of  domicile;  they  are  ^ot  inconsistent  with 
domicile.  There  are  many  foreigners  resident  and  domiciled  in  this 
country  who  pass  their  lives  in  lodgings  only;  a  man  may  be  domi- 
ciled in  a  country  without  having  a  fixed  habitation  in  some  particular 
spot  in  that  country.  The  plaintiff's  lodgings  or  apartments  were  all 
within  the  area  of  London.  If  (as  I  think  was  the  case)  the  plaintiff's 
domicile  was  English  in  January,  1886,  there  is  no  sufficient  evidence 
to  show  subsequent  abandonment  of  that  domicile.  The  subsequent 
breaking  up  of  the  house  at  Albert  Gate  is  attributed  by  the  plain- 
tiff to  his  wife;  even  if  it  were  his  own  act  it  would  not  of  itself 
constitute  an  abandonment  of  a  home  or  domicile  in  England.  For 
the  period  of  two  and  a  half  years  which  elapsed  between  the  separa- 
tion and  his  wife's  death  the  plaintiff's  principal  place  of  residence 
was  in  London;  he  quitted  London  only  for  the  temporary  purpose  of 
his  short  trips  abroad.  The  plaintiff's  counsel  relied  on  the  decision 
in  In  re  Patience,  29  Ch.  D.  976  On  a  question  of  fact  a  decision 
in  a  previous  case  affords  little  or  no  assistance.  In  that  case  I 
thought  there  was  not  sufficient  evidence  of  intention.  In  this  case  I 
think  there  is.     The  action  is  dismissed  with  costs. 

The  plaintiff  appealed. 

LiNDLEY,  L.  J.,  in  delivering  judgment,  went  through  the  facts  of 
the  case,  and  expressed  the  opinion  that  the  plaintiff  had  not  a  Scotch 
domicile  at  the  time  of  his  wife's  death.  His  Lordship  accordingly 
held  that  the  decision  of  Mr.  Justice  Chitty  was  right,  and  that  the 
appeal  must  be  dismissed  with  costs. 

BowEN  and  K.w,  L.JJ.,  concurred.' 


I'OLLOCK,  C.   B.,  in  Attorney-General  V,  Pottinger,   6  H.  «&  N. 
733,744(1861).     The  question  is,  whether  Sir  Henry  Pottinger  at  the 

i  Ace.  Merrill  v.  Morrisett,  7G  Ala.  433;  Dalloz,  IJepert.  vol.  xvii.  |>.  39G.     Contra, 
In  re  Patience,  29  Ch.  D  976.     Cf.  De.smare  v.  U.  .S..  93  U.  S.  60.''>.  —  Eu. 


174  PUTNAM   V.   JOHNSON.  [CHAP.  II. 

time  of  his  decease  was  domiciled  in  England  or  in  India.  .  .  . 
The  only  doubt  arises  from  this,  that  he  continued  in  the  service  of 
the  East  India  Company,  and  might  have  been  called  upon  at  any 
time  to  serve  in  India.  In  Hodgson  v.  De  Beauchesne,  12  Moo.  P.  C. 
285,  which  was  cited  to  estabUsh  that  because  an  Indian  officer  con- 
tinued liable  to  be  called  upon  to  serve  in  India  he  could  not  acquire 
an  English  domicile,  the  court  decided  that  such  circumstances  con- 
stituted a  strong  reason  against  such  an  officer  acquiring  a  French 
domicile.  But  the  distinction  between  a  foreign  and  an  English  domi- 
cile is  pointed  out  in  the  judgment,  and  Lord  Cranworth  in  the  course 
of  Dr.  Phillimore's  replv,  said  :  "  If  the  deceased  had  gone  to  Scotland 
on  furlough,  and  resided  there  as  long  as  he  did  in  France,  it  would  be 
difficult  to  say  that  he  had  not  acquired  a  Scotch  domicile."  Applying 
that  to  this  case,  I  think  that,  notwithstanding  Sir  Henry  Pottinger 
continued  in  the  Indian  army,  his  purchase  of  a  dwelling-house  in 
Eaton  Place,  his  continuing  to  hold  it  whilst  absent  from  England,  his 
return  to  it  as  his  place  of  residence  and  his  home,  and  his  reference 
to  it  in  his  will  as  his  residence,  abundantly  establishes  his  English 
domicile.^ 


PUTNAM   V.   JOHNSON. 
Supreme  Judicial  Court  of  Massachusetts.     1813. 

[Reported  10  Massachusetts,  488.] 

Case  against  the  selectmen  of  Andover  for  refusing  to  insert  plain- 
tiff's name  on  the  voting-list  of  the  town.^  At  the  trial  of  the  action, 
which  was  had  upon  the  general  issue  before  Sewall,  J.,  at  the  Sit- 
tings here  after  this  term,  a  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  upon  certain  facts  agreed  by  the 
parties,  and  certain  evidence  given  at  the  trial,  and  reported  by  the 
judge  who  presided  thereat. 

It  was  admitted  that  the  plaintiff  was  born  in  Danvers,  on  the  24th 
day  of  November,  1786;  that  he  resided  there,  in  his  father's  fam- 
ily, until  he  entered  Dartmouth  College,  in  August,  180.5;  that  he 
was  graduated  at  the  said  college  in  1809;  that  he  then  went  to 
Salem,  and  resided  there  as  a  student  at  law  until  the  13th  of  April, 

1812,  when  he  went  to  Andover;  that  he  resided  in  Andover  during 
the  vacation  of  six  weeks  [in  the  theological  seminary]  in  May  and 
June,  1812,  and  of  the  vacation  of  six  weeks  in  the  autumn  of  that 
year  he  spent  about  half  at  his  father's  house  in  Danvers,  and  in 
visits  to  different  places;  that  he  did,  on  the  first  Monday  of  April, 

1813,  request  the  defendants   to  insert  his    name  upon   the  list  of 

*  Jcc.  Mooar  v.  Harvey,  128  Mass.  219. 

In  Hamilton  v.  Dallas,  1  Ch.  D.  257  (1875),  it  was  held  that  a  British  peer,  though 
a  member  of  the  House  of  Lords,  may  acquire  a  domicile  in  France.  —  Ed. 

2  This  short  statement  is  substituted  for  the  declaration,  given  by  the  Reporter. 
—  Ed. 


SECT.  I.]  rUTNAM   V.   JOHNSON.  175 

voters  in  Andover,  for  senators;  that  they  refused  to  insert  it;  that 
at  the  said  meeting  he  offered  his  vote  for  senators,  and  the  defend- 
ants refused  to  receive  it;  that  he  possessed  sufficient  personal  estate; 
and  that  he  was  taxed  in  Salem  in  the  years  1810  and  1811,  and  paid 
his  taxes,  and  voted  in  said  town  after  March,  1810,  until  he  left 
that  place  in  April,  1812. 

The  judge  also  reported  that  Eleazar  Putnam,  the  father  of  the 
plaintiff,  testified  that  his  son,  since  he  left  college,  had  received  no 
support  from  him,  or  any  assistance  except  in  the  way  of  credit  to 
him,  and  was  not  of  the  father's  family,  but  separated,  and,  as  the 
father  believed,  was  upon  the  charity  foundation  at  Andover,  and 
that  he  owned  some  real  estate.  Mark  Newman,  Esquire,  testified 
that  the  plaintiff  was  upon  the  charity  foundation  in  the  theological 
seminary  at  Andover;  that  students  in  divinity  on  that  foundation 
are  restricted  to  a  residence  of  three  years  before  they  are  entitled  to 
a  license  to  preach,  and  are  permitted  to  continue  their  residence 
there  afterwards;  that  the  residence  of  students  is  in  chambers,  as 
at  a  college,  with  board  in  commons;  that  he  had  not  known  of  any 
students  in  the  theological  institution  who  had  been  admitted  to  vote, 
and  that  they  had  not  taken  any  concern  in  town  affairs ;  that  a  Mr. 
Scammou,  in  1812,  while  a  student,  claimed  a  right  to  vote,  and  was 
refused;  and  that  theological  students,  when  licensed  to  preach  and 
employed  as  candidates  for  the  ministry,  reside  and  make  their  home 
at  the  institution,  and  in  the  vacations  generally  go  from  thence,  but 
sometimes  continue  there. ^ 

Parker,  J.  The  plaintiff,  being  a  citizen  of  the  commonwealth, 
more  than  twenty-one  years  of  age,  and  of  competent  property,  is 
without  doubt  entitled  to  vote  somewhere  within  the  State  for  State 
oflScers. 

By  the  facts  reported  in  this  case,  it  is  manifest  that  Andover  or 
Danvers  is  the  place  where  the  plaintiff  has  his  home,  within  the  true 
intent  of  the  constitution.  Although  he  was  born  in  Danvers,  and 
that  is  still  the  domicile  of  his  father,  yet  he  was  of  an  age  to  eman- 
cipate himself,  and  obtain  a  home  in  some  other  town.  He  went  to 
Andover,  and  had  resided  there  a  few  days  short  of  a  year,  previous 
to  the  election  in  April,  1813.  A  year's  residence  was  not  necessary 
to  entitle  him  to  vote  in  that  town;  it  was  sudicient  that  he  made 
that  his  home.  He  had  left  his  father's  family  several  years  before, 
and  had  become  a  resident  in  Salem,  where  he  was  taxed  and  per- 
mitted to  vote.  His  father  had  ceased  to  support  him  since  the  year 
180'J,  before  which  time  he  was  also  of  age;  and  he  was  at  Salem, 
preparing  himself  for  an  independent  living,  until  the  spring  of 
1812,  when  he  removed  to  Andover,  to  pursue  his  theological  studies 
there,  which,  as  he  was  on  the  charitable  foundation,  required  a  resi- 
dence of  three  years. 

1  ArKunients  of  counsel  arc  oiiiitti'd.  —  Kd. 


176  PUTNAM   V.    JOHNSON.  [CHAP.  11. 

Was  Andover,  then,  his  dwelling-place  or  home?  This  is  the 
question  now  to  be  solved.  It  is  manifest  that  Danvers  was  not; 
for  he  had  abandoned  it,  and  did  not  keep  up  his  connection  with  his 
father's  family,  as  was  the  case  of  Emmons  in  Granby  v.  Amherst, 
7  Mass.  1,  cited  in  the  argument.  He  could  not  vote  in  Danvers, 
for  his  home  was  not  there.  He  must,  then,  have  a  right  to  vote  in 
Andover,  or  be  subjected  to  a  temporary  disfranchisement,  in  conse- 
quence of  his  having  no  home  in  any  place. 

The  objection  most  insisted  on  by  the  counsel  for  the  defendants 
is,  that  the  plaintiff  did  not  go  to  Andover  with  an  intention  to 
remain  there;  but  merely  for  the  purpose  of  instruction,  and  there- 
fore that  he  could  not  exercise  any  of  his  civil  privileges  within  that 
town;  although  it  was  admitted  that  a  mechanic  or  day-laborer, 
otherwise  qualified,  making  Andover  his  home,  by  residing  and 
dwelling  there,  would  be  a  legal  voter  there. 

A  residence  at  a  college  or  other  seminary,  for  the  purpose  of 
instruction,  would  not  confer  a  right  to  vote  in  the  town  where  such 
an  institution  exists,  if  the  student  had  not  severed  himself  from  his 
father's  control,  but  resorted  to  his  house  as  a  home,  and  continued 
under  his  direction  and  management.  But  such  residence  will  give 
a  right  to  vote  to  a  citizen  not  under  pupilage,  notwithstanding  it 
may  not  be  his  expectation  to  remain  there  forever. 

The  definition  of  domicile,  as  cited  from  Vattel  by  the  counsel  for 
the  defendants,  is  too  strict,  if  taken  literally,  to  govern  in  a  ques- 
tion of  this  sort;  and,  if  adopted  here,  might  deprive  a  large  portion 
of  the  citizens  of  their  right  of  suffrage.  He  describes  a  person's 
domicile  as  the  habitation  fixed  in  any  place,  with  an  intention  of 
always  staying  there.  In  this  new  and  enterprising  country,  it  is 
doubtful  whether  one  half  of  the  young  men,  at  the  time  of  their 
emancipation,  fix  themselves  in  any  town  with  an  intention  of  always 
staying  there.  They  settle  in  a  place  by  way  of  experiment,  to  see 
whether  it  will  suit  their  views  of  business  and  advancement  in  life; 
and  with  an  intention  of  removing  to  some  more  advantageous  posi- 
tion if  they  should  be  disappointed.  Nevertheless,  they  have  their 
home  in  their  chosen  abode  while  they  remain.  Probably  the  mean- 
ing of  Vattel  is,  that  the  habitation  fixed  in  any  place,  without  any 
present  intention  of  removing  therefrom,  is  the  domicile.  At  least, 
this  definition  is  better  suited  to  the  circumstances  of  this  country. 

But  several  cases  have  been  cited  from  our  own  reports,  which  are 
supposed  to  be  analogous  to  the  case  at  bar,  in  which  the  settlement 
of  paupers  has  been  decided  upon  more  strict  principles  than  are  now 
suggested.  The  case  of  Granby  v.  Amherst  is  the  strongest;  and  it 
IS  manifest  that  there  is  nothing,  even  in  that  case,  which  contradicts 
the  principles  now  advanced.  The  pauper  there  left  Belchertown 
and  went  to  Dartmouth  College,  merely  for  the  purpose  of  education. 
He  was  under  age  while  at  college,  until  a  few  months  before  he  was 
graduated.     He  passed  all  his  vacations  in  Belchertown,   he  had  a 


SECT.  I.]  ABINGTON   V.    NORTH   BRIDGEWATER.  177 

^ILSTe  had  Tot  ;;;^„':aYi/<,o,„ici,e  by  goiug  to  D.tfnout. 

on    aestt'rof  poUtiea,  ptiviieges.     In  the  (-^^  --;•. '  "^^  ; 
eonSictbetwee„t.,o„,.po..aUo„s.,asub.e     of^p^^^ 

must   De  ueieiiu  •   ^      i„,i  t^  hp  «Ponved  by  the  coustitutional 

nrnnertv      The  obiecls  intemlecl  to  be  secuiea   "J  •- 

i-r:::.  .t.fT.r  o^^c"  r:r:o'irrap:^te.^: 


Fur  h  ?■  a  citizen  may  .ell  bave  bis  borne  in  one  town  witb  all 
the  p  V  Wes  of  an  inhabitant,  and  yet  have  his  legal  settlement  .n 
not'heriown.  Fo,-  instance,  if  be  should  /-i<^^^.  ,7;jX"f» 
town,  own  and  occupy  veal  property  there  gain  a  ''^f  ^°°^  th«e  foi 
himself  and  bis  family,  witbont  any  ■"t">t>on  °'.  'f"7  "='  f* 
might  notwithstanding,  be  ren.oved  tO  the  place  of  bis  a-f"!  -"1^ 
ment  in  case  he  should  become  chargeable.  But  it  would  be  haid  to 
Tay  he  had  no  home  there,  that  he  did  not  dwell  there,  and  therefore 
that  he  should  not  be  permitted  to  vote  there. 

We  are  all  of  opinion  that  the  plaintiff's  case  is  well  made  out,  and 
that  judgment  must  be  entered  on  the  verdict.^ 


ABINGTON    V.   NORTH   BRIDGEWATER. 

Supreme  Judicial  Court  of  Massachusetts.     1840. 
[Reported  23  Pickering,  170.] 

Shaw  C  J.,  drew  up  the  opinion  of  the  court.'  The  question  of 
Ebeneze'r  Hill's  settlement  depends  upon  this  whether  he  was  an  in- 
habitant of  North  Bridgewater  before  the  10th  of  April,  1.6/.  If 
his  house  or  place  of  residence  was  in  that  town,  he  acquired  a  set- 
tlement there,  and  the  defendants  are  liable,  otherwise  not. 

nte  several  provincial  statutes  of  1692,  1701,  and  1767  upon  this 
subject,  the  terms  ^coming  to  sojourn  or  dwell,"  "being  an  inhab- 
itant,"''residing  and  continuing  one's  residence,"  "coming  to  resid. 

1  Ace.  Vanderpoel  ..  D'Hanlu,,  f.i  I..  •24«  ;  J^y-^^^^-tion  Jl  P.^  302.  -  E... 
«  Acc.  Sanders  ..  Getchell,  76  Me.  158 ;  H.cks  ..  ^^l^'nnf>. /^  ^   a  1. 
Residence  for  voting  means  actual  .h.m.c.le.     Denms  ..  S.,  17  Fa.  389.  -  L... 
•  The  opinion  only  is  given  :  it  sulliciently  states  the  case.  -  i^i). 

12 


de 


178  ABINGTON    V.   KORTH    BRIDGE  WATER.  [CIIAl'.  11. 

and  dwell,"  are  frequently  and  variously  used,  and,  we  think,  they  are 
used  indiscriminately,  and  all  mean  the  same  thing,  namely,  to  desig- 
nate the  place  of  a  person's  domicile.  This  is  defined  in  the  Consti- 
tution, c.  1,  §  1,  for  another  purpose,  to  be  the  place  "where  one 
dwelleth  or  hath  his  home." 

The  fact  of  domicile  is  often  one  of  the  highest  importance  to  a 
person;  it  determines  his  civil  and  political  rights  and  privileges, 
duties  and  obligations;  it  fixes  his  allegiance;  it  determines  his  bel- 
ligerent and  neutral  character  in  time  of  war;  it  regulates  his  personal 
and  social  relations  whilst  he  lives,  and  furnishes  the  rule  for  the 
disposal  of  his  property  when  he  dies.  Yet  as  a  question  of  fact, 
it  is  often  one  of  great  difficulty,  depending  sometimes  upon  minute 
shades  of  distinction,  which  can  hardly  be  defined.  It  seems  difBcult 
to  form  any  exact  definition  of  domicile,  because  it  does  not  depend 
upon  any  single  fact,  or  precise  combination  of  circumstances.  If 
we  adopt  the  above  definition  from  the  Constitution,  which  seems 
intended  to  explain  the  matter  and  put  it  beyond  doubt,  it  will  be 
found,  on  examination,  to  be  only  an  identical  proposition,  equivalent 
to  declaring,  that  a  man  shall  be  an  inhabitant  where  he  inhabits,  or 
be  considered  as  dwelling  or  having  his  home  where  he  dwells  or  has 
his  home.  It  must  often  depend  upon  the  circumstances  of  each 
case,  the  combinations  of  which  are  infinite.  If  it  be  said  to  be  fixed 
by  the  place  of  his  dwelling-house,  he  may  have  dwelling  bouses  in 
different  places;  if  it  be  where  his  family  reside,  his  family  with 
himself  may  occupy  them  indiscriminately,  and  reside  as  much  in 
one  as  another;  if  it  be  where  he  lodges  or  sleeps  {j'^ernoctat),  he 
may  lodge  as  much  at  the  one  as  the  other;  if  it  be  his  place  of  busi- 
ness, he  may  have  a  warehouse,  manufactory,  wharf,  or  other  place  of 
business,  in  connection  with  his  dwelling-house  in  different  towns. 
See  Lyman  v.  Fiske,  17  Pick.  231.  But  without  pursuing  this  gen- 
eral view  further,  to  show  that  it  is  difficult,  if  not  impossible,  to  lay 
down  any  general  rule,  on  account  of  the  very  diversified  cases  which 
may  be  supposed,  yet  it  will  generally  be  found  in  practice,  that 
there  is  some  one  or  a  few  decisive  circumstances  which  will  deter- 
mine the  question. 

In  coming  to  the  inquiry  in  each  case,  two  considerations  must  be 
kept  steadily  in  view,  and  these  are,  — 

1.  That  every  person  must  have  a  domicile  somewhere;  and 

2.  That  a  man  can  have  only  one  domicile,  for  one  purpose,  at  one 
and  the  same  time. 

Every  one  has  a  domicile  of  origin,  which  he  retains  until  he  ac- 
quires another;  and  the  one  thus  acquired  is  in  like  manner  retained. 

The  supposition,  that  a  man  can  have  two  domiciles,  would  lead  to 
the  absurdest  consequences.  If  he  had  two  domiciles  within  the 
limits  of  distant  sovereign  States,  in  case  of  war,  what  would  be  an 
act  of  imperative  duty  to  one,  would  make  him  a  traitor  to  the  other. 
As  not  only  sovereigns,  but  all  their  subjects,  collectively  and  indi- 


SECT.  I.]  ABINGTON   V.   NORTH   BRIDGEWATER.  179 

vidually,  are  put  into  a  state  of  hostility  by  war,  he  would  become 
an  eueiny  to  himself,  and  bound  to  commit  hostilities  and  afford  pro- 
tection to  the  same  persons  and  property  at  the  same  time. 

But  without    such   an    extravagant   supposition,   suppose    he  were 
domiciled  withiu  two  military  districts  of  the  same  State,  he  might 
be  bound  to  do  personal  service  at  two  places,  at  the  same  time;  or 
in  two  counties,   he  would  be  compellable,   on  peril  of  attachment, 
to  serve  on  juries  at  two  remote  shire  towns;  or  in  two  towns,  to  do 
watch  and  ward  in  two  different  places.     Or,  to  apply  an  illustration 
from  the  present  case.     By  the  provincial  laws  cited,  a  man  was  liable 
to  be  removed  by  a  warrant  to  the  place  of  his  settlement,  habitancy, 
or  residence,  for  all  these  terms  are  used.     If  it  were  possible  that 
he  could  have  a  settlement  or  habitancy  in  two  different  towns  at  the 
same  time,  it  would  follow  that  two  sets  of  civil  officers,  each  acting 
under  a  leoal  warrant,  would  be  bound  to  remove  him  by  force,  the 
one    to  one    town,   and   the  other  to  another.      These    propositions, 
therefore,  that  every  person  must  have  some  domicile,  and  can  have 
but  one  at  one  time,  for  the  same  purpose,  are  rather  to  be  regarded 
as  postulata  than  as  propositions  to  be  proved.      Yet  we  think  they 
o-o  far  in  furnishing  a  test  by  which  the  question  may  be  tried  in 
each  particular  case.     It  depends  not  upon  proving  particular  facts, 
but  whether  all  the  facts  and  circumstances  taken  together,  tending 
to  show  that  a  man  has  his   home  or  domicile  in  one  place,  over- 
balance all  the  like  proofs,  tending  to  establish  it  in  another;  such 
an  inquiry,  therefore,  involves  a  comparison  of  proofs,  and  in  mak- 
ing   that   comparison,    there   are   some   facts   which   the  law  deems 
decisive,    unless   controlled    and    counteracted    by  others    still  more 
stringent.     The  place  of  a  man's  dwelling-house  is  first  regarded,  in 
contradistinction  to  any  place  of  business,  trade,  or  occupation.     If 
he  has    more  than  one   dwelling-house,  that   in  which  he   sleeps  or 
passes  his  nights,  if  it  can  be  distinguished,  will  govern.     And  we 
think  it  settled  by  authority,  that  if  the  dwelling-house  is  partly  in 
one  place  and  partly  in  another,  the  occupant  must  be  deemed  to  dwell 
in  that  town  in  which  he  habitually  sleeps,  if  it  can  be  ascertained. 

Lord  Coke,  in  2  Inst.  120,  comments  upon  the  statute  of  Marl- 
bridge  respecting  courts  leet,  in  which  it  says,  that  none  shall  be 
bouml  to  appear,  nisi  in  fjn/hus  iibi  fiwrant  convet'santcs  ;  which  he 
translates,  "but  in  the  bailiwicks,  where  they  be  dwelling."  His 
Lordship's  comment  is  this:  "If  a  man  have  a  house  within  two  leets, 
he  shall  be  taken  to  ])e  conversant  whore  his  bed  is,  for  in  that  part 
of  the  house  he  is  most  conversant,  and  here  conversant  shall  be 
taken  to  be  most  conversant."  This  passage,  at  first  blush,  might 
seem  to  imply  that  the  entire  house  was  within  two  leets.  But  no 
man  can  be  of  two  leets.  2  Doug.  538;  2  Hawk.  P.  C.  c.  10,  §  12. 
Indeed,  the  whole  passage,  taken  together,  obviously  means,  a  house 
partly  within  one  leet  and  parlly  within  another;  otherwise,  the  bed 
would  be  within  the  two  leets,  us  well  as  the  house. 


180  ABINGTON   V.   NORTH    BRIDGEWATEK.  [CHAP.  [I, 

It  is  then  an  authority  directly  in  point  to  show,  that  if  a  man  has 
a  dwelling-house,  situated  partly  within  one  jurisdiction  and  partly 
in  another,  to  one  of  which  the  occupant  owes  personal  service,  as  an 
inhabitant,  he  shall  be  deemed  an  inhabitant  within  that  jurisdiction 
within  the  limits  of  which  he  usually  sleeps. 

The  same  principle  seems  to  have  been  recognized  in  other  cases, 
mostly  cases  of  settlement,  depending  on  domicile.  Rex  v.  St. 
Olaves,  1  Str.  51;  Colechurch  c.  Radcliffe,  1  Str,  60;  Rex  i\  Brigh» 
ton,  5  T.  R.  188;  Rex  v.  Ringwood,  1  Maule  &  Selw.  381. 

I  am  aware  that  the  same  difficulty  may  arise  as  before  suggested, 
which  is,  that  the  occupant  may  not  always,  or  principally,  sleep  in 
one  part  of  his  house,  or  if  he  sleeps  in  one  room  habitually,  the 
dividing  line  of  the  towns  may  pass  through  the  room  or  even  across 
his  bed.  This,  however,  is  a  question  of  fact  depending  upon  the 
proofs.  When  such  a  case  occurs,  it  may  be  attended  by  some  other 
circumstance  decisive  of  the  question.  If  the  two  principles  stated 
are  well  established,  and  we  think  they  are,  they  are,  in  our  opinion, 
sufficient  to  determine  the  present  case.  It  becomes,  therefore,  neces- 
sary to  see  what  were  the  facts  of  this  case,  and  the  instructions  in 
point  of  law  upon  which  it  was  left  to  the  jury. 

The  plaintiffs  contended  that  two  monuments  pointed  out  by  them 
were  true  and  genuine  monuments  of  the  Colony  line,  and  if  so,  a 
straight  line  drawn  from  one  to  the  other  would  leave  the  house 
wholly  in  North  Bridgewater,  and  the  jury  were  instructed,  if  they 
so  found,  to  return  a  verdict  for  the  plaintiffs.  But  the  jur}'  stated, 
on  their  return,  that  on  this  point  they  did  not  agree,  and  therefore 
that  part  of  the  instruction  may  be  considered  as  out  of  the  case.  It 
is  therefore  to  be  taken  that,  in  point  of  fact,  the  line  ran  through 
the  house,  leaving  a  small  part  in  Randolph  and  a  large  part  in  North 
Bridgewater.  In  reference  to  this,  the  jury  were  instructed,  that 
if  that  line  would  leave  a  habitable  part  of  the  house  in  Randolph, 
the  verdict  should  be  for  the  defendants;  otherwise,  for  the  plaintiffs. 
The  jury  were  also  directed  to  find,  specially,  whether  the  beds  of  the 
family  in  which  they  slept,  and  the  chimney  and  fireplace,  were  or 
were  not  in  North  Bridgewater.  The  jury  found  a  verdict  for  tlie 
plaintiffs,  which  in  effect  determined,  in  point  of  fact,  that  the  line 
did  run  through  the  house,  leaving  a  small  part  in  Randolph,  that  the 
beds  and  fireplaces  of  the  house  were  on  the  North  Bridgewater  side 
of  the  line,  and  that  there  was  not  a  habitable  part  of  the  house  in 
Randolph. 

What  was  the  legal  effect  of  this  instruction  to  the  jury?  To 
understand  it,  we  must  consider  what  was  the  issue.  The  burden  of 
proof  was  upon  the  plaintiffs,  to  prove  that  Hill  had  his  settlement 
in  North  Bridgewater.  But  proving  that  he  had  a  dwelling-house, 
standing  partly  in  North  Bridgewater  and  partly  in  Randolph,  would 
leave  it  wholly  doubtful  whether  he  had  his  domicile  in  the  one  or 
the  other,  provided  that  the  line  passed  the  house  in  such  a  direction 


SECT,  l]  ABINGTON   V.    NORTH    BRIDGEWATER.  181 

as  that  either  would  have  been  sufficient  for  the  purpose  of  a  habita- 
tion; because  it  would  still  be  doubtful  whether  he  dwelt  upon  one  or 
the  other  side  of  that  line.  But  if  the  line  ran  in  such  a  direction  as  to 
leave  so  small  a  portion  on  one  side  that  it  could  not  constitute  a 
human  habitation,  then  the  position  of  the  dwelling  determined  the 
domicile.  In  any  other  sense,  we  see  not  how  the  correctness  of  the 
instruction  could  be  maintained.  If  the  term  "habitable  part  of 
the  house  "  was  intended  to  mean  a  portion  of  the  house  capable  of 
being  used  with  the  other  part  for  purposes  of  habitation,  and  the 
whole  constituting  together  a  place  of  habitation,  then  every  part  of 
the  house  capable  of  being  used  would  be  a  habitable  part.  The 
instruction  was,  that  if  a  habitable  part  was  in  Randolph,  the  occu- 
pant did  not  acquire  a  domicile  in  North  Bridgewater;  it  would  be 
equally  true  in  law,  that  if  a  habitable  part  was  in  North  Bridge- 
water,  he  did  not  acquire  a  domicile  in  Randolph.  If  the  term 
"habitable,"  then,  were  used  in  the  restricted  sense,  capable  of  being 
used  as  a  part,  and  not  as  the  whole  of  a  human  habitation,  the  in- 
struction would  amount  to  this,  that  living  ten  years  in  a  dwelling- 
house  divided  by  an  imaginary  line  into  parts,  both  of  which  are 
useful  and  capable  of  being  used  as  parts  of  a  dwelling-house,  the 
occupant  would  acquire  no  domicile.  But  this  is  utterly  inconsistent 
with  the  principles  of  domicile.  By  leaving  his  domicile  in  Abing- 
ton,  and  living  in  the  house  in  question,  Hill  necessarily  lost  his 
domicile  in  Abington,  and  necessarily  acquired  one  by  living  in  that 
house;  and  this  must  be  in  either  Randolph  or  Bridgewater,  and  not 
in  both.  It  may  be  impossible,  from  lapse  of  time  and  want  of 
evidence,  to  prove  in  which,  and  therefore  the  plaintiffs,  wbo«e  case 
depends  on  proving  athrmatively  that  it  was  in  North  Bridgewater, 
may  fail;  nevertheless  it  is  equally  true,  in  itself,  that  he  did  acquire 
a  domicile  in  one,  and  could  not  acquire  one  in  both  of  those  towns. 
Suppose  the  proof  were  still  more  deficient;  suppose  it  were  proved 
beyond  doubt,  that  Hill  lived  in  a  house  situated  on  a  cleared  lot 
of  one  acre  through  wiiic-h  the  town  line  were  proved  to  run,  but  it 
were  left  uncertain  in  the  proof  on  which  part  of  the  lot  the  house 
was  situated.  It  would  be  true  that  he  lost  his  domicile  in  Abing- 
ton, and  acquired  one  in  Randolph  or  North  Bridgewater;  but  it  being 
entirely  uncertain  wiiich,  the  plaintiffs  would  foil  of  proving  it  in 
North  Bridgewater,  and  therefore  could  not  sustain  their  action. 
So  if  the  line  ran  through  a  house  in  such  a  manner  that  either  side 
might  afford  a  habitation,  then  dwelling  in  that  house  would  not  of 
itself  prove  in  which  town  he  acquired  his  domicile,  though  he  must 
have  acquired  it  in  one  or  the  other.  In  this  sense  we  understand  the 
instruction  to  the  jury,  and  in  this  sense  we  think  it  was  strictly 
correct.  If  they  should  find  that  the  line  so  ran  through  the  house  as 
to  leave  a  part  capable,  of  itself,  of  constituting  a  habitation,  in 
Randolph,  then  dwelling  in  that  house,  though  partly  in  North  Bridge- 
water,  did  not  necessarily  prove  a  domicile  in  North  Bridgewater. 


182  HA.GGART   V.   MORGAN.  [CHAP.  II. 

Under  this  instruction  the  jurj^  found  a  verdict  for  the  plaintiffs, 
and  we  think  it  is  evident  from  this  verdict,  that  they  understood  the 
instruction  as  we  understand  it.  The  jury  find  that  one  corner  of 
the  house,  to  the  extent  of  two  feet  and  one  inch,  was  in  Randolph, 
but  that  no  habitable  part  of  the  house  was  in  Randolph;  not,  as  we 
think,  no  part  capable  of  being  used  with  the  rest  of  the  house  for 
the  purpose  of  habitation,  but  no  part  capable,  of  itself,  of  constitut- 
ing a  habitation;  from  which  they  draw  the  proper  inference,  that 
the  habitation  and  domicile,  and  consequently  the  settlement,  was  in 
North  Bridgewater. 

And  if  we  look  at  the  fact,  specially  found  by  the  jury,  we  are 
satisfied  that  they  drew  the  right  conclusion,  and  could  come  to  na 
other.  If  the  line  had  divided  the  house  more  equally,  we  think,  on 
the  authorities,  that  if  it  could  be  ascertained  where  the  occupant 
habitually  slept,  this  would  be  a  preponderating  circumstance,  and, 
in  the  absence  of  other  proof,  decisive.  Here  it  is  found,  that  all 
the  beds,  the  chimney  and  fireplace,  were  within  the  North  Bridge- 
water  side  of  the  line,  and  that  only  a  small  portion  of  the  house,  and 
that  not  a  side  but  a  corner,  was  within  the  Randolph  side,  and  that 
so  small  as  to  be  obviously  incapable  of  constituting  a  habitation  by 
itself.  We  think,  therefore,  that  the  instruction  was  right,  and  the 
verdict  conformable  to  the  evidence. 

Judgment  on  the  verdict  for  the  plaintiffs."^ 


HAGGART  v.  MORGAN. 
Court  of  Appeals,  New  York.     1851. 

[Reported  5  New  York,  422.] 

Gardiner,  J.^  The  defendants  at  the  trial  offered  to  prove  "that 
at  the  time  of  taking  out  the  attachment  mentioned  in  the  pleadings, 
and  at  the  time  of  the  giving  of  the  bond  in  suit,  the  debtor,  Bran- 
degee,  was  not  a  non-resident  of  the  city  of  New  York,  but  a  resi- 
dent. That  he  had  been  absent  about  three  years,  in  attending  a  law- 
suit at  New  Orleans,  and  returned  in  the  spring  of  1848."  The 
judge  excluded  the  evidence  on  the  grounds,  —  1st,  That  the  offer 
itself  showed  the  debtor  to  be  a  non-resident,  at  the  time  when  the 
attachment  issued,  within  the  spirit  of  the  act;  2d,  that  the  giving 
of  the  bond  to  discharge  the  attachment  prevented  him  from  show- 
ing such  fact;  and  the  defendant  excepted.  This  exception  presents 
the  only  question  in  the  cause  worthy  of  serious  consideration. 

The  ruling  of  the  judge  was  probably  correct  for  the  reasons  as- 
signed by  hhu.     In  the  matter  of  Thompson,  1  Wend.  45,  the  distinc 

1  Ace.  Judkiiis  V.  Reed,  48  Me.  386.  —  Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT.  I.]  AVILLIAMS    V.    ROXBURY.  ISo 

tion  was  taken  between  the  residence  of  the  debtor  and  his  domicile. 
It  was  there  held  that  his  residence  might  be  abroad,  within  the  spirit 
of  the  statute,  which  was  intended  to  give  a  remedy  to  creditors  whose 
debtors  could  not  be  served  with  process,  while  his  domicile  continued 
in  this  State.  In  Frost  v.  Brisbiu,  19  Wend.  14,  it  was  said,  in  a 
case  like  the  present,  that  actual  residence,  without  regard  to  the  dom- 
icile of  the  defendant,  was  within  the  contemplation  of  the  statute. 
It  was  part  of  the  offer  of  the  defendants  to  prove  that  the  debtor 
left  this  State  in  November,  1844,  and  returned  in  the  spring  of 
1848,  and  that  this  absence  of  three  years  and  a  half  was  necessary 
to  accomplish  the  business  in  which  he  was  engaged.  He  was  there- 
fore a  non-resident  when  the  attachment  was  issued,  within  these 
decisions,  although  domiciled  in  New  York.^ 


WILLIAMS  V.  ROXBURY. 
Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  12  Gray,  21.] 

Action  of  contract  to  recover  back  the  amount  of  a  tax  assessed  on 
the  1st  of  May,  1856,  upon  personal  property  held  by  the  plaintiff  as 
trustee  under  the  will  of  John  D.  Williams,  for  the  benefit  of  Mrs. 
Sarah  A.  W.  Bradlee,  formerly  Miss  Merry,  and  paid  under  protest. 
The  parties  agreed  that  if,  in  the  opinion  of  the  court,  upon  so  much 
of  the  following  facts  as  would  be  admissible  in  evidence,  Richards 
Bradlee,  her  husband,  was  a  resident  of  Brookline,  judgment  should 
be  rendered  for  the  plaintiff;  otherwise,  for  the  defendants. 

Richards  Bradlee  was  born  in  Brattleboro,  Vt.,  lived  there  until 
the  acre  of  sixteen,  then  went  to  New  York,  and  there  remained  until 
after°he  became  of  age  in  the  spring  of  1855,  when  he  returned  to 
Brattleboro  for  the  purpose  of  finding  some  employment,  but  with  a 
view  of  going  to  the  West,  and,  after  passing  the  summer  in  Brattle- 
boro, went  to  St.  Louis  in  Octaber  in  search  of  employment,  and 
entered  a  store  as  a  clerk,  but  under  no  contract  for  any  fixed  length 
of  time;  and  in  the  following  winter  at  St.  Louis  met  Miss  Merry, 
who  resided  in  Roxbury,  and  became  engaged  to  marry  her.  He 
never   had   any   intention   of    making   Roxbury   his   residence.     In 

1  Ace.  Krone  v.  Cooper,  43  Ark.  547  ;  Lu.llow  v.  Szold,  90  la.  175,  57  N.  W. 
676  (see,  however,  Church  v.  Grossman,  49  la.  444);  lli.sewick  v.  Davis,  19  Md. 
82  •  Alstons.  Newcomer.  42  Miss.  186  ;  Johnson  v.  Smith,  43  Mo.  499  ;  Lon-  v.  Ryan, 
30  Grat  718.  Contra,  Wood  ..  Ro-der,  45  Neb.  311,  63  N.  W.  853;  Stratton  v. 
Brigham,  2  Sneed,  420.     And  see  Ballinger  v.  Lautier,  15  Kan.  008  ;  Clark  v.  Likens, 

^'  A'imilar^ruie  prevails  as  to  "settlement"  or  "residence  "  in  poor-law  cases.  Jef- 
ferson V.  Washington,  19  Me.  293  ;  North  Yarmouth  v.  West  Gardinei',  58  Me.  207- 
—  Ed. 


184  GILMAN    V.   OILMAN.  [CHAP.  II. 

March,  1856,  he  hired  a  bouse  in  Brookline,  at  a  rent  to  begin  on  the 
1st  of  April,  for  the  residence  of  himself  and  his  wife;  visited  it  with 
her  several  times  to  set  up  the  furniture;  put  a  housekeeper  and 
servants  in  charge  of  it,  and  removed  into  it  his  and  Miss  Merry't, 
movable  property.  They  were  married  in  Roxbury  on  the  9th  of 
April,  and  on  the  same  day  started  on  a  wedding  tour,  with  the  inten 
tion  of  returning,  not  to  Miss  Merry's  former  residence  in  Roxbury, 
but  to  the  furnished  house  in  Brookline,  and  on  the  2d  of  May  did 
return  to  that  house. 

a  A.   Welch,  for  the  plaintiff. 

ir.   Gaston,  for  the  defendants. 

Shaw,  C.  J.  The  question  of  domicile  is  a  question  of  fact.  It 
is  a  question  of  comparison  of  facts.  Had  Mr.  Bradlee  previously 
had  a  clear,  fixed,  aud  decided  domicile,  the  circumstances  would 
hardly  be  sufficient  to  show  an  acquisition  of  a  domicile  in  Brookline. 
But  when  we  compare  the  facts,  we  are  brought  to  the  opposite  result. 
Brattleboro  was  his  domicile  of  origin,  but  he  scarcely  ever  visited 
there,  and  soon  after  coming  of  age  went  to  St.  Louis,  and  was  there 
three  or  four  months  as  a  clerk,  and  there  formed  a  marriage  engage- 
ment with  Miss  Merry.  lie  then  came  to  Massachusetts,  without 
any  intention  to  return  to  St.  Louis  with  his  wife.  But  he  came  to 
Massachusetts  to  fulfil  his  engagement.  He  acquired  no  domicile  at 
Roxburv.  He  took  a  lease  of  a  house  in  Brookline  in  March,  the  rent 
to  commence  on  the  1st  of  April;  took  possession;  put  in  a  house- 
keeper; visited  the  house  for  the  purpose  of  putting  up  furniture, 
and  removed  all  his  own  and  his  wife's  property  to  it,  before  their 
marriage.  His  subsequent  absence  was  only  temporary;  he  left  on  a 
marriage  tour,  with  the  intention  to  return  to  live  in  Brookline,  and 
on  his  return  he  took  actual  possession  of  the  house  which  he  had 
hired.  Our  conclusion  is  that  upon  a  balance  of  all  the  facts  the 
domicile  was  in  Brookline,  and  that 

The  plaintiff  is  entitled  to  judgment.  ^ 


GILMAN   V.  GILMAN. 

Supreme  Judicial  Court  of  Maine.     1863. 

[Reported  .52  Maine,  165.] 

Davis,  J.^  This  case  comes  before  us  upon  an  appeal  from  a 
decree  of  the  Probate  Court,  admitting  to  probate  and  allowing  the 

1  Ace.  Mann  v.  Clark,  33  Vt.  55. 

If  the  fact  of  residence  and  the  intention  to  stay  indefinitely  concur,  a  domicile  is 
o-ained  at  once,  for  however  short  a  time  the  residence  or  the  intent  continues.  Par- 
sons V.  Bangor,  61  Me.  457  ;  Stockton  v.  Staples,  66  Me.  197  ;  Thorndike  v.  Boston, 
1  Met.  242  ;  McConnell  v.  Kelley,  138  Mass.  372  ;  Home  v.  Home,  9  Ired.  99.  —  Ed 

*  The  opinion  only  is  given  :  it  sultieiently  states  the  case.  —  Ed. 


SECT.  I.]  GILMAN    V.    OILMAN.  185 

last  Tvill  and  testament  of  Nathaniel  Gilman.  It  was  proved  by  a 
copy,  the  original  being  beyond  the  jurisdiction  of  the  court. 

The  validity  of  the  will  is  not  questioned.  But  the  testator  left  a 
large  amount  of  property  iu  the  city  of  New  York  as  well  as  iu  this 
State;  and  the  will  has  been  proved  and  allowed  there,  on  proof  of 
its  execution  merely,  without  any  inquiry  in  regard  to  domicile.  The 
Surrogate  seems  to  have  assumed  that  jurisdiction  of  the  property 
conferred  original  jurisdiction  of  the  will,  whether  the  testator's 
domicile  was  there  or  elsewhere.  Even  if  his  decree  were  conclusive, 
which  cannot  be  admitted,  no  decree  was  made  by  him  upon  that 
point,  or  that  was  intended  to  settle  it,  as  a  judgment  binding  upon 
the  courts  of  any  other  State. 

If  the  domicile  of  the  testator,  at  the  time  of  his  death,  was  in  New 
York,  then  his  will  should  be  allowed  and  recorded  iu  this  State  as  a 
foreign  will.  R.  S.,  c.  64,  §  8.  And,  in  that  case,  the  movable 
property  in  this  State  would  be  disposed  of,  under  the  will, 
according  to  the  laws  of  the  State  of  New  York.  Jarman  on  Wills, 
2.  But  if  his  domicile  was  in  this  State,  then  the  Probate  Court  here 
has  original  jurisdiction,  and  our  laws  must  govern  the  construction 
of  the  will,  and  the  disposal  of  the  property.  Harrison  v.  Nickerson, 
9  Pet.  483;  Story's  Conflict  of  Laws,  §  481;  Bempde  v.  John- 
stone, 3  Ves.  199. 

It  would  be  well,  if  possible,  to  have  a  distinct  and  clear  idea  of 
what  we  mean  by  the  term  "domicile,"  before  applying  it  to  this 
case.  It  is  no  easy  matter,  however,  to  find  a  definition  that  has 
not  been  questioned.  Vattel  defines  it  as  "the  habitation  fixed  in 
any  place,  with  an  intention  of  always  staying  there."  This  is 
quoted  with  approbation  by  Savage,  C.  J.,  in  Thompson's  Case, 
1  Wend.  43;  and  in  the  case  of  Roberts'  Will,  8  Paige,  519,  Chan- 
cellor Walworth  adopts  it  in  substance.  "Domicile  is  the  actual 
residence  of  an  individual  at  a  pai'ticular  place,  with  the  animus 
manendi^  or  a  fixed  and  settled  determination  to  remain  there  the 
remainder  of  his  life."  This  was  slightly  varied  in  Massachusetts, 
by  Wilde,  J.,  in  Jennison  v.  Hapgood,  10  Pick.  77,  where  it  is  said 
to  be  a  residence  at  a  place  "accompanied  with  the  intention  to  re- 
main there  permanently,  or  at  least  for  an  indefinite  time."  Vattel's 
definition  was  questioned  by  Parker,  J.,  in  Putnam  v.  .Johnson,  10 
Mass.  488,  in  which  "domicile"  is  said  to  be  "the  habitation  fixed  in 
any  place,  without  any  present  intention  of  removing  therefrom." 
This  form  has  been  recognized  in  this  State  as  more  nearly  correct 
than  any  of  the  others.     Warren  o.  Thomaston,  43  Maine,  406. 

All  definitions  of  this  kind  were  criticised,  with  much  force,  by 
Lord  Campbell,  C.  J.,  in  the  case  of  Regina  v.  Stapleton,  18  Eng. 
Law  and  Eq.  301,  in  which  he  suggests  that,  if  one  should  go  to 
Australia,  with  the  intention  of  remaining  there  ten  years,  and  then 
returning,  his  domicile  could  hardly  l>e  said  to  continue  in  England. 
If  he  should  leave  his  family  in  England,  as  stated  in  llu'  sii|)posed 


1S6  OILMAN   V.   OILMAN.  [CHAP.  II. 

case,  his  domicile  might  properly  be  considered  there.  But,  if  a  citi- 
zen of  Maine,  with  his  family,  or  having  no  family,  should  go  to 
California,  to  engage  in  business  there,  with  the  intention  of  return- 
ing at  some  future  time,  definite  or  indefinite,  and  should  establish 
himself  there,  in  trade  or  agriculture,  it  is  difficult  to  see  upon  what 
principle  his  domicile  could  be  said  still  to  be  here.  His  residence 
there,  with  the  intention  of  remaining  there  a  term  of  years,  might 
so  connect  him  with  all  the  interests  and  institutions,  social  and 
public,  of  the  community  around  him,  as  to  render  it  not  only  proper, 
but  important,  for  him  to  assume  the  responsibilities  of  citizenship, 
with  all  its  privileges  and  its  burdens.  Such  residences  are  not 
strictly  within  the  terms  of  any  definition  that  has  been  given;  and 
yet  it  can  hardly  be  doubted  that  they  would  be  held  to  establish 
the  domicile. 

Other  definitions  have  been  given,  which,  though  more  general,  are 
better  adapted  to  determine  the  case  at  bar.  Thus  Story,  in  his 
Conflict  of  Laws,  says  that  one's  domicile  is  "his  true,  fixed,  perma- 
nent home,  and  principal  establishment,  to  which,  whenever  he  is 
absent,  he  means  to  return."  And,  in  Munroe  v.  Munroe,  7  CI.  & 
Fin.  877,  Lord  Cottenham  says  that,  to  effect  the  abandonment  of 
one's  domicile,  and  to  substitute  another  in  its  place,  "  is  required  the 
choice  of  a  place,  actual  residence  in  the  place  chosen,  and  that  it 
should  be  the  principal  and  permanent  residence." 

That  the  testator's  original  residence  was  in  Waterville  is  ad- 
mitted. There  he  established  himself  in  business,  accumulated  prop- 
erty, was  married,  and  owned  a  house,  in  which,  either  continuously  or 
at  intervals,  he  resided,  with  his  family,  until  he  died  there  in  1859. 

It  has  been  laid  down  as  a  maxim  on  this  subject,  that  every  person 
must  have  a  domicile  somewhere.  Abington  v.  North  Bridgewater, 
23  Pick.  170.  This  may  be  doubtful  in  its  application  to  some  ques- 
tions. A  life  may  be  so  vagrant  that  a  person  will  have  no  home  in 
any  city  or  town  where  he  can  claim  any  of  the  rights  or  privileges 
appertaining  to  that  relation.  But,  in  regard  to  questions  of  citizen- 
ship, and  the  disposition  of  property  after  death,  every  person  must 
have  a  domicile.  1  Amer.  Lead.  Cas.  725,  note.  For  every  one  is 
presumed  to  be  a  subject  of  some  government  while  living;  and  the 
law  of  some  country  must  control  the  disposition  of  his  property  upon 
his  decease.  It  is  therefore  an  established  principle  of  jurisprudence, 
in  regard  to  the  succession  of  property,  that  a  domicile  once  acquired 
continues  until  a  new  one  is  established.  Therefore  the  testator's 
domicile  must  be  considered  in  Waterville,  for  the  purpose  of  settling 
his  estate,  unless  he  had  not  only  abandoned  it,  but  had  actually 
acquired  a  new  domicile  in  New  York. 

It  appears  in  evidence  that  he  commenced  business  in  New  York 
about  1831,  at  first  being  there  transiently;  that  in  1836  or  1837, 
having  been  married  a  second  time,  he  was  in  the  habit  of  spending 
considerable  time  there  with  his  family  at  the  Astor  House,  and  other 


SECT.  I.]  GILMAN   V.   OILMAN.  187 

hotels ;  that  he  hired  a  house  there,  in  which  he  lived  portions  of  the 
year  from  1841  to  1844;  that  he  bought  a  house  in  Brooklyn,  which 
he  occupied  at  intervals  from  1847  to  1852;  that  he  bought  a  lot  in 
Greenwood  Cemetery,  on  which  he  built  an  expensive  tomb;  that, 
after  1836,  his  principal  business  was  in  New  York,  and  that  several 
of  his  children  were  married  and  settled  there  in  business.  But  he 
never  disposed  of  his  house  in  Waterville;  he  always  kept  it  fur- 
nished, in  repair,  and  supplied  with  fuel;  he  kept  a  horse  and  car- 
riage there;  he  generally  spoke  of  Waterville  as  his  home;  and,  with 
the  exception  of  one  or  two  years  (and  during  those  years  he  did  not 
keep  house  anywhere  else),  he  lived  in  his  house  there  a  portion  of 
the  3'ear  with  his  family. 

A  person  may  have  two  places  of  residence,  for  purposes  of  busi- 
ness or  pleasure.  Thorndike  v.  Boston,  1  Met.  242;  Sears  v.  Boston, 
1  Met.  250.  But,  in  regard  to  the  succession  of  his  property,  as  he 
must  have  a  domicile  somewhere,  so  he  can  have  only  one.  Green  v. 
Green,  11  Pick.  410.  It  is  not  very  uncommon  for  wealthy  mer- 
chants to  have  two  dwelling-houses,  one  in  the  city  and  another  in  the 
country,  or  in  two  different  cities,  residing  in  each  a  part  of  the  year. 
In  such  cases,  looking  at  the  domestic  establishment  merely,  it  might 
be  difficult  to  determine  whether  the  domicile  was  in  one  place  or  the 
other.  Bernal  v.  Bernal,  3  Mylne  &  Craig,  555,  note.  In  the  case 
of  Somerville  v.  Somerville,  5  Ves.  750,  788,  it  is  stated  as  a  general 
rule,  "that  a  merchant,  whose  business  is  in  the  metropolis,  shall  be 
considered  as  having  his  domicile  there,  and  not  at  his  country  resi- 
dence." But  no  such  rule  can  be  admitted.  The  cases  differ,  and 
are  distinguished  by  other  facts  so  important,  that  the  domicile  can- 
not always  be  held  to  be  in  the  city.  It  is  frequently  the  case  that 
the  only  real  home  is  in  the  country;  so  that,  while  some  such  mer- 
chants talk  of  going  into  the  country  to  spend  the  summer,  others, 
with  equal  propriety  speak  of  going  into  the  city  to  spend  the 
winter. 

If  any  general  rule  can  be  applied  to  such  cases,  we  think  it  is 
this:  that  the  domicile  of  origin,  or  the  previ^ous  domicile,  shall  pre- 
vail. This  is  in  accordance  with  the  general  doctrine,  that  the  forvm. 
origines  remains  until  a  new  one  is  acquired.  3  Kent,  431 ;  Kilburn 
V.  Bennett,  3  Met.  199;  Moore  v.  Wilkins,  10  N.  H.  455;  Hood's 
Case,  21  Penn.  106.  And  this  would  generally  be  in  harmony  with 
the  other  circumstances  of  each  case.  If  the  merchant  was  originally 
from  the  country,  and  he  keeps  up  his  household  establishment  there, 
his  residence  in  the  city  will  Ijc  likely  to  have  the  characteristics  of 
a  temporary  abode.  "While,  if  his  original  domicile  was  in  the  city, 
and  he  purchases  or  builds  a  country  house  for  a  place  of  summer 
resort,  he  will  not  be  likely  to  establish  any  permanent  relations  with 
the  people  or  the  institutions  of  the  town  in  which  it  is  located. 

If  we  apply  this  rule  to  the  case  at  bar,  it  will  bring  us  to  the 
conclusion  that  the    testator's  domicile  in  "Waterville  remained  uu* 


188  OILMAN    V.   OILMAN.  [CHAP.  II. 

chano-ecl.     Are  there  any  facts  that  should  make  this  case  an  excep- 
tion to  the  rule? 

The  testator  continued  to  vote  in  Waterville  about  one  half  of  the 
time.  There  is  no  evidence  that  he  ever  voted  in  New  York.  His 
manner  of  life  there,  boarding  generally  at  hotels,  where  he  always 
registered  his  name  as  from  "Maine,"  renders  it  probable  that  he 
never  claimed  or  was  admitted  to  be  a  voter  in  that  city. 

He  paid  a  tax  upon  personal  as  well  as  real  estate  in  Waterville, 
a  few  of  the  years  after  he  went  into  business  in  New  York.  He 
does  not  appear  ever  to  have  paid  any  tax  in  the  latter  place  but  one 
year.  He  evidently  belonged  to  that  class  of  men,  fortunately  small 
in  number,  who  have  no  stronger  desire  than  to  avoid  the  paymen-t 
of  taxes  anywhere. 

These  facts  have  little  tendency  to  establish  anything  but  the  inten- 
tion of  the  testator.  Residence,  being  a  visible  fact,  is  not  usually 
in  doubt.  The  intention  to  remain  is  not  so  easily  proved.  Both 
must  concur  in  order  to  establish  a  domicile.  Harvard  College  v. 
Gore,  5  Pick.  370.  And,  as  both  are  known  to  be  requisite  in  order 
to  subject  one  to  taxation,  or  to  give  him  the  right  of  suffrage,  any 
resident  who  submits  to  the  one,  or  claims  the  other,  may  be  pre- 
sumed to  have  such  intention.  Both  parties  claim  that  the  will  itself 
furnishes  evidence  of  the  testator's  domicile.  At  most,  it  can  be  of 
little  weight,  except  on  the  question  of  his  intention.  Such  inten- 
tion must  relate  to  the  future  and  not  to  the  past.  A  will  made  at  or 
near  the  close  of  life  will  not  be  likely  to  throw  much  light  on  that 
question.  It  must  be  an  intention  to  reside.  An  intention  to  dis- 
pose of  his  property  according  to  the  laws  of  any  place,  does  not  tend 
to  fix  the  testator's  domicile  there.  So  that,  if  the  will  is  made  in 
conformity  with  our  laws,  and  even  if,  as  is  contended,  some  of  its 
provisions  would  be  void  by  the  laws  of  New  York,  that  cannot  affect 
the  question  of  domicile.  Hoskins  r.  Matthews,  35  Eng.  Law  and 
Eq.  532;  Anstruther  v.  Chalmer,  2  Simons,  1.  Nor,  on  the  other 
hand,  does  the  fact  that  he  described  himself,  in  the  will,  and  in  the 
codicil,  as  "of  the  city  and  State  of  New  York,"  make  any  material 
difference.     Whicker  r.  Hume,  5  Eng.  Law  and  Eq.  52. 

During  the  last  twenty  years  of  the  testator's  life,  his  ruling  pur- 
pose seems  to  have  been  to  accumulate  property  abroad,  and  escape 
taxation  there  and  at  home.  This  led  him  to  sacrifice,  to  a  large 
extent,  the  enjoyments  of  domestic  life,  and  to  sever  or  neglect  all 
those  social  ties  which  might  have  given  him  position  and  influence 
in  the  community.  He  pursued  this  process  of  isolation,  because, 
while  it  did  not  interfere  with  his  gains,  it  diminished  his  expenses. 
This  was  what  rendered  his  domicile  a  question  of  doubt.  This  is 
what  gives  to  the  testimony,  as  it  gave  to  his  life,  an  aspect  of  incon- 
sistency and  contradiction.  But  through  it  all  there  is  apparent  an 
intention  to  retain  his  home  in  Waterville,  as  a  place  of  retreat  for 
himself  during  life,  and  a  place  of  residence  for  his  family  after  his 


SECT.  I.]  WILBKAHAM    V.    LUDLOW,  189 

decease.  He  never  had  any  such  home  elsewhere.  And,  upon  the 
whole  evidence,  we  are  satisfied  that  his  domicile  was  never  changed. 
The  decree  of  the  Probate  Court  is  affirmed,  with  costs  for  the 
appellees.^ 


WILBRAHAM    v.    LUDLOW. 
Supreme  Judicial  Court  of  Massachusetts.     1868. 

{Reported  99  Massachusetts,  587.] 

Foster,  J."-  The  question  in  the  present  cavse  was,  whether  the 
pauper,  whose  settlement  was  once  in  the  plaintiff  town  of  Wilbraham, 
had  acquired  a  new  settlement  in  Ludlow.  The  burden  of  proof  to 
establish  this  was  on  the  plaintiffs.  After  the  presiding  judge  had 
announced  the  rule  of  law  which  he  deemed  to  govern  the  case,  and 
the  instructions  which  he  proposed  to  give  to  the  jury,  the  plaintiffs 
declined  to  argue  tiie  case,  submitted  to  a  verdict  for  the  defendants, 
and  alleged  exceptions.  Under  these  circumstances,  the  only  question 
open  for  revision  is  the  correctness  of  the  rulings.  The  evidence  is 
not  for  the  court  to  pass  upon,  and  is  leported  only  to  make  the 
instructions  intelligible  and  enable  us  to  judge  better  whether  they 
were  pertinent  and  accurate. 

The  pauper  leased  his  house  in  Ludlow  in  June,  1857,  and  never 
lived  in  it  again.  He  remained  in  that  town,  working  as  a  laborer, 
until  August  in  that  year.  He  then  went  to  his  brother's  house  in 
Wilbraham,  and  afterwards  worked  about,  as  a  day  laborer,  in  the 
towns  of  Wilbraham,  Springfield,  and  Ludlow,  till  October,  1861,  after 
which  he  remained  in  Wi[braluim  in  the  family  of  Horace  Clark,  who 
was  about  that  time  appointed  his  guardian,  until  he  was  committed  as 
an  insane  pauper  to  the  hospital  at  IS'orthampton.  The  proposition  to 
he  maintained  by  the  {olaintiffs  was,  that  after  August,  1857,  he  c(m- 
tinued  to  reside  in  Ludlow  within  the  meaning  of  the  pauper  laws  ;  so 
that  a  settlement  in  that  town  could  be  subsequently  acquired.  There 
was  certainl}'  no  actual  continuance  of  liis  former  home  in  that  town  ; 
it  was  broken  up  and  he  had  abandoned  it,  apparentl}-  without  any 
intention  to  return  there  to  live.  But  the  argument  for  the  plaintiffs 
is,  that  the  pauper's  domicile  remained  in  Ludlow  until  he  acquired  a 
new  one  in  some  other  town,  and  tliat,  while  absent  in  fact,  he  con- 
tinued to  live  there  in  contemplation  of  lq.w,  and  by  such  constructive 
residence  the  prescribed  peiiod  for  acquiring  a  settlement  was  com- 
pleted . 

Assuming  that  this  view  of  the  law  is  correct,  and  that  domicile  and 
residence  are  identical  under  the  pauper  laws,  we  are  nevertheless  of 
opinion  that  the  rule  of  law  stated  to  the  jury  was  correct.     If,  from 

1  Ace.  Somerville  v.  Somei-ville,  .5  Ves.  750;  Harvard  ("oUegi;  v.  Gore,  5  Pick.  370. 
—  Ed. 

2  The  opinion  only  is  given  :  it  sutiicientiy  states  the  case.  —  Ed. 


190  BANGS    V.   BREWSTER.  [CHAP.  II. 

the  time  the  pauper  left  Ludlow  in  August,  1857,  he  had  "  no  opinions, 
desires,  or  intentions  in  relation  to  residence,  except  to  have  a  home 
wherever  he  worked,"  then  he  did  have  in  each  successive  town  where 
he  lived  as  a  laborer  a  home  and  domicile  so  long  as  he  remained  there. 
It  must  be  borne  in  mind  that  this  was  the  case  of  one  who  had  aban- 
doned his  former  dwelling-place,  either  with  no  intention  of  return,  or 
at  the  most  with  such  vague,  indefinite,  and  remote  purposes  in  this 
respect  that  they  would  not  prevent  him  from  readily  acquiring  a  new 
domicile  wherever  he  might  go.  The  person  was  a  day  laborer  without 
family,  separated  by  judicial  decree  from  his  wife.  Such  a  man,  so 
situated,  when  he  is  laboring  in  one  town  with  no  other  intention  as  to 
residence  except  to  have  a  home  wherever  he  works,  may  well  be  deemed 
to  live  there  with  the  purpose  of  remaining  for  an  indefinite  period  of 
time,  and  thus  to  have  there  all  the  home  he  has  anywhere,  as  much  of 
a  domicile  as  such  a  wanderer  can  have.  At  least  it  was  competent  for 
the  jury  to  come  to  that  conclusion  ;  and  the  instructions  under  which 
they  did  so  were  unobjectionable. 

It  is  unnecessary  to  attempt  a  precise  definition  of  the  term  domicile, 
as  to  which  that  eminent  English  judge,  Dr.  Lushington,  has  said  that, 
"  although  so  many  powerful  minds  have  been  applied  to  the  question, 
there  is  no  universally  agreed  definition  of  the  term,  no  agreed  enumera- 
tion of  the  ingredients  which  constitute  domicile."  Maltass  v.  Maltass, 
1  Rob.  Ecc.  74.  Story  Confl.  Laws,  c.  3.  Our  own  adjudged  cases 
sufficiently  establish  the  rule  that  one  who  is  residing  in  a  place  with 
the  purpose  of  remaining  there  for  an  indefinite  period  of  time,  and 
without  retaining  and  keeping  up  any  animus  revertendi,  or  intention 
to  return,  to  the  former  home  which  he  has  abandoned,  will  have  his 
domicile  in  the  place  of  his  actual  residence.  Sleeper  v.  Paige.  15  Gray, 
349  ;  Whitney  v.  Sherborn,  12  Allen,  111.  Where  the  question  is  one 
of  national  domicile,  this  statement  may  not  be  correct ;  for  such  a  con- 
dition of  facts  might  not  manifest  an  intention  of  expatriation.  But 
it  is  accurate  enough  for  cases  like  the  present,  which  relate  to  a  change 
of  domicile  from  one  place  to  another  within  the  same  Commonwealth. 

Exceptions  overruled} 


BANGS   V.   BREWSTER. 

Supreme  Judicial  Court  of  Massachusetts.     1873. 

[Reported  111  Massachusetts,  382.] 

Morton,  J."^     The  question  at  the  trial  was  whether  the  plaintiff  had 

on  May  1,  1869,  acquired  a  domicile  in  Orleans.     There  is  no  doubt  as 

1  "  A  sea  captain,  who  has  neither  domicile  nor  residence  abroad,  whose  domicile  of 
origin,  being  abandoned  long  ago,  without  intention  of  returning,  should  be  considered 
as  lost,  and  who  has  no  residence  except  on  the  steamer  which  lie  commands,  is  in  the 
eye  of  the  law,  for  the  purpose  of  service  of  process  on  him,  domiciled  in  the  port  where 
his  vessel  is  moored  at  the  time  of  service."  —  Court  of  Ghent  (1891),  21  Clunet,  584. 
But  see  Boothbay  v.  Wiscasset,  3  Me.  354.  —Ed. 

-  Part  of  the  opinion  only  is  given.  — Ed. 


SECT.' I.]  DUPUY    V.    WURTZ.  191 

to  the  rule  of  law  that  the  plaintitfs  Uoniicile  of  origin  in  Brewster  ad- 
hered  to  him  until  he  hud  ac(iiiired  a  doiuicdle  scmewliere  else,  and  that 
in  order  to  effect  a  change  of  domicile  he  must  not  only  have  had  the 
intent  to  make  his  home  in  some  other  town,  but  he  must  in  fact  have 
made  his  home  there.  The  intent  and  the  act  must  concur,  and  until 
the  intent  was  consummated  by  an  actual  removal  of  his  home,  no 
change  of  domicile  was  effected.  Whitney  r.  Slierborn,  12  Allen,  111 . 
Carnoe  v.  Freetown,  9  Gray,  357. 

The  question  is  as  to  the  ai)i)lication  of  this  rule  to  the  facts  of  this 
case.  Tiie  plaintiff  was  a  shipmaster,  most  of  whose  time  was  spent 
at  sea.  He  went  to  sea  in  November,  1S67,  taking  his  wife  with  him, 
and  in  December,  1868,  he  sent  his  wife  to  Orleans,  and  she  arrived 
there  in  February,  1869.  He  did  not  arrive  at  Orleans  until  July, 
1869,  so  that  he  was  not  personally  present  in  Orleans  on  May  1, 
1869.  The  special  findings  of  the  jury  settle  conclusively  that  when 
he  went  to  sea  in  November,  1867,  he  had  the  definite  intent  to  make 
Orleans  his  home,  and  that  in  December,  1868,  he  sent  his  wife  to 
Orleans  in  pursuance  of  that  intent.  We  think  the  jury  were  justified 
in  finding  that  his  domicile  was  in  Orleans  on  the  first  of  May. 

By  sending  his  wife  to  Orleans  with  the  intent  to  make  it  his  home, 
he  thereby  changed  his  domicile.  The  fact  of  removal  and  the  intent 
concurred.  Although  he  was  not  personally  present,  he  established  his 
home  there  from  the  time  of  his  wife's  arrival.^ 


DUPUY  V.  WURTZ. 
Court  of  Appeals,  Nkw  York.     1873. 

[Reported  53  New  York,  556.] 

Rapallo,  J.^  "When  Mrs.  Wurtz  went  to  Europe  with  her  hus- 
band, in  1859,  she  was  domiciled  in  the  city  and  State  of  New  York. 
She  and  her  husband  were  natives  of  the  United  States.  It  does 
not  appear  in  the  case  that  she  ever  had  had  any  domicile  except  in 
this  State,  and  it  seems  to  be  conceded  on  both  sides  that  this 
was  her  domicile  of  origin. 

1  Ace.  Anderson  v.  Anderson,  42  Vt.  350.  Contra,  Hart  v.  Horn,  4  Kan.  232. 
In  Porterfield  v.  Auf(usta,  67  Me.  .556  (1877),  it  was  held  that  the  husband's  domicile 
could  not  thus  be  changed  if  the  wife's  removal  was  without  his  piior  consent.  See 
further,  Fayette  v.  Livermore,  62  Me.  229.  If  the  wife  removes,  the  husband  remain- 
ing at  the  old  domicile,  their  domicile  is  of  course  not  changed.  Scholes  v.  Murray  Iron 
Works  Co.,  44  la.  190.  And  the  fact  that  a  man's  family  is  settled  in  a  certain  place 
(thougli  prima  facie  evidence  that  he  is  domiciled  there,  Brewer  v.  Linna<uis,  36  Me.  428) 
is  consistent  with  his  being  domiciled  elsewhere.  (Jreeiic  v.  Windham,  13  Me.  225; 
Cambridge  i;.  Charlestown,  13  Mass.  501 ;  Hair.ston  v.  Hairston,  27  Miss.  704  ;  Pearco 
V.  S.,  1  Sneed.  63.  —  Ed. 

2  Only  so  much  of  tlic  oiiinion  ns  deals  willi  tliciiuestioii  of  domicile  is  given.  — Ed, 


192  DUPUY    V.    WURTZ.  [chap.  II. 

It  is  not  pretended  that  she  or  her  husband  had  abandoned  their 
domicile  in  New  York  up  to  the  time  of  his  death  in  Europe  in  1861 ; 
and  from  the  evidence,  which  we  have  carefully  examined,  but  do 
not  consider  it  necessary  to  recite  in  detail,  we  are  clearly  of  opinion 
that,  up  to  the  fall  of  1868,  she  had  not  for  a  moment  relinquished  her 
intention  and  expectation,  often  declared  orally,  and  in  her  written 
correspondence,  of  returning  to  her  home  in  New  York  as  soon  as  the 
condition  of  her  health  should  permit;  that  her  sojourn  in  Europe  was 
compulsory,  being  caused  by  ill  health  and  the  advice  of  her  physi- 
cian that  she  was  not  physically  able  to  bear  the  voyage  and  the  ex- 
citement which  would  await  her  on  her  return;  that  she  had  not 
acquired  any  domicile  abroad,  and  up  to  the  time  of  the  execution  of 
the  will  in  question,  November  21,  1868,  she  continued  to  be  a  citizen 
of  this  State. 

But  it  is  claimed  on  the  part  of  the  contestants  that  although  it 
should  be  conceded  that  she  was  a  citizen  of  New  York  at  that  time, 
and  then  intended  to  return,  she  changed  her  intention,  after  execut- 
ing the  will,  and  acquired  a  domicile  at  Nice,  and  that  this  change 
destroyed  the  validity  of  the  will,  it  not  having  been  executed  accord- 
ing to  the  laAvs  of  France.  This  is  the  only  branch  of  the  case  which 
presents  questions  of  difficulty. 

The  counsel  for  the  contestants  is  sustained  by  authority  in  the 
position  that  the  domicile  of  the  testatrix  at  the  time  of  her  death, 
and  not  at  the  time  of  the  execution  of  the  will,  is  the  material  in- 
quiry; and  that  as  to  personal  property,  the  question  of  intestacy,  or 
of  the  valid  execution  of  her  will,  depends  upon  the  law  of  the  place 
where  she  was  domiciled  at  the  time  of  her  death.  This  question  was 
decided  after  much  discussion,  and  notwithstanding  the  dissents  of 
three  eminent  judges  of  this  court,  in  the  case  of  Moultrie  v.  Hunt, 
23  N.  Y.  394. 

In  England,  the  embarrassments  likely  to  arise  from  such  a  rule  are 
now  obviated,  as  to  British  subjects,  by  the  Act  of  Parliament  of  24 
and  25  Victoria,  chapter  114,  1861-2,  which  provides  in  substance, 
as  to  wills  made  after  the  passage  of  the  act,  that  wills  of  personal 
estate  made  out  of  the  United  Kingdom  by  a  British  subject  shall  be 
deemed  well  executed,  whatever  may  be  the  domicile  of  the  testator 
at  the  time  of  making  the  will,  or  of  his  death,  if  made  according  to 
the  forms  required  by  the  law  of  the  place  where  made,  or  of  the 
place  of  the  domicile  of  the  testator  at  the  time  of  making  the  will, 
or  of  the  laws  then  in  force  in  that  part  of  Her  Majesty's  dominions 
where  he  had  his  domicile  of  origin.  Also,  that  no  subsequent  change 
of  domicile  shall  affect  the  validity  or  construction  of  the  will. 
This  enactment  substantially  conforms  the  law  of  England  to  that 
which  generally  prevails  in  continental  Europe.  We  have  no  such 
statute,  and  must  therefore  follow  the  rule  laid  down  in  Moultrie  v. 
Hunt,  and  hold  that  if  at  the  time  of  her  death,  January  8,  1871, 
Mrs.  Wurtz  had  changed  her  domicile  and  ceased  to  be  a  citizen  of 


SF.CT.  I.]  DUPUY    V.   WUKTZ.  193 

this  State,  her  will  is  not  valid  here,  unless  it  would  be  valid  accord* 
ing  to  the  law  of  the  place  of  her  domicile  at  the  time  of  her  death. 
(See  also  1  Brad.  6'J ;  St<jry  Conf.  Laws,  §  -iTo.)  The  important  ques- 
tion, therefore,  is  whether  the  evidence  establishes  such  a  change  of 
the  domicile  of  the  testatrix  as  is  alleged  b}-  the  contestants. 

A  reference  to  some  of  the  elementary  principles  governing  ques- 
tions of  domicile  will  facilitate  this  inquiry. 

One  leading  rule  is  that  for  the  purposes  of  succession  every  person 
must  have  a  domicile  somewhere,  and  can  have  but  one  domicile,  and 
that  the  domicile  of  origin  is  presumed  to  continue  until  a  new  one  is 
acquired.  (Somerville  v.  Somerville,  5  Ves.  750,  786,  787;  Story, 
Conf.  Laws,  §  45;  Abington  v.  N.  Briilgewater,  23  Pick.  170; 
Graham  r.  Pub.  Admr.,  4  Brad.  128;  De  Bonneval  v.  De  Bonneval,  1 
Curteis,  856;  Attorney-General  v.  Countess  of  Wahlstatt,  3  Hurl.  & 
Colt.  374;  Aikman  v.  Aikman,  3  McQueen,  855,  863,  877.) 

The  statute  of  New  York  of  1830,  2  Stat,  at  Large,  p.  69,  §  69«, 
referred  to  by  the  learned  counsel  for  the  contestants,  does  not  affect 
this  principle,  nor  does  it  aid  in  determining  whether  Mrs.  Wurtz 
had  lost  her  domicile  or  citizenship  in  New  York. 

The  object  and  effect  of  this  act  are  fully  explained  in  Matter  of 
Catharine  Roberts'  Will,  8  Paige,  525,  526;  Isham  v.  Gibbons,  1 
Bradf.  69;  4  Bradf.  128. 

To  effect  a  change  of  domicile  for  the  purpose  of  succession  there 
must  be  not  only  a  change  of  residence,  but  an  intention  to  abandon 
the  former  domicile,  and  acquire  another  as  the  sole  domicile.  There 
must  be  both  residence  in  the  alleged  adopted  domicile  and  intention 
to  adopt  such  place  of  residence  as  the  sole  domicile.  Residence 
alone  has  no  effect  per  se,  though  it  may  be  most  important,  as  a 
ground  from  which  to  infer  intention.  Length  of  residence  will  not 
alone  effect  the  change.  Intention  alone  will  not  do  it,  but  the  two 
taken  together  do  constitute  a  change  of  domicile.  (Hodgson  r.  De 
Beauchesne,  12  Moore  P.  C.  Cases,  283,  328;  Muiu-o  v.  Munro,  7  CI. 
&  F.  877;  Collier  v.  Rivaz,  2  Curteis,  857;  Aikman  v.  Aikman,  3 
McQueen,  855,  877.)  This  rule  is  laid  down  with  great  clearness  in 
the  case  of  Moorhouse  v.  Lord,  10  H.  L.  283,  292,  as  follows: 
Change  of  residence  alone,  however  long  continued,  does  not  effect  a 
change  of  domicile  as  regulating  the  testamentary  acts  of  the  indi- 
vidual. It  may  be,  and  is,  strong  evidence  of  an  intention  to  change 
the  domicile.  But  unless  in  addition  to  residence  there  is  an  inten- 
tion to  change  the  domicile,  no  change  of  domicile  is  made.  And  in 
Whicker  v.  Hume,  7  H.  L.  139,  it  is  said  the  length  of  time  is  an 
ingredient  in  domicile.  It  is  of  little  value  if  not  united  to  intention, 
and  is  nothing  if  contradicted  by  intention.  And  in  Aikman  v, 
Aikman,  3  McQueen,  877,  Lord  Cranworth  says,  with  great  concise- 
ness, that  the  rule  of  law  is  perfectly  settled  that  every  man's  domi- 
cile of  origin  is  presumed  to  coMtimie  until  he  has  acquired  another 
sole  domicile  with  tiie  inleiili'.ii  of  ahandoniiig  iiis  domicile  of  origin; 


194  DUPUY   V.   WURTZ.  [CHAP.  II. 

that  this  change  must  be  animo  et  facto^   and  the  burden  of   proof 
unquestionably  lies  upon  the  party  who  asserts  the  change. 

The  question  what  shall  be  considered  the  domicile  of  a  party,  is 
in  all  cases  rather  a  question  of  fact  than  of  law.  (Bruce  v.  Bruce, 
6  Bro.  Par.  C.  56(5.)  AYith  respect  to  the  evidence  necessary  to 
establish  the  intention,  it  is  impossible  to  lay  down  any  positive 
rule.  Courts  of  justice  must  necessarily  draw  their  conclusions  from 
all  the  circumstances  of  each  case,  and  each  case  must  vary  in  its 
circumstances;  and  moreover,  in  one  a  fact  may  be  of  the  greatest 
importance,  but  in  another  the  same  fact  may  be  so  qualified  as  to  be 
of  little  weight.      (12  Moore  Priv.  C.  C.  330.) 

In  passing  upon  such  a  question,  in  view  of  the  important  results 
flowing  from  a  change  of  domicile,  the  intention  to  make  such  a 
change  should  be  established  by  very  clear  proof  (Donaldson  v.  Mc- 
Clure,  20  Scotch  Session  Cases,  2d  series,  321;  S.  C.  affi'd,  3  Mc- 
Queen, 852),  especially  when  the  change  is  to  a  foreign  country. 
(Moorhouse  v.  Lord,  10  H.  L.  283.) 

The  intention  may  be  gathered  both  from  acts  and  declarations. 
Acts  are  regarded  as  more  important  than  declarations,  and  written 
declarations  are  usually  more  reliable  than  oral  ones. 

The  principal  if  not  the  only  act  done  by  Mrs.  Wurtz,  in  1868,  bear- 
ing upon  the  question  of  an  intention  to  abandon  her  domicile  in 
New  York,  consisted  in  her  letting  her  house  in  Fifth  Avenue  to 
Mr.  Gray  in  that  year.  This  house  she  had  kept  unoccupied  during 
all  her  ^tay  abroad  up  to  that  time,  and  it  is  to  be  observed  that  in 
letting  it  to  Mr.  Gray,  the  testatrix  reserved  one  room  for  the  storage 
of  some  of  her  effects.  In  all  other  respects  she  continued  to  live 
after  1868,  as  she  had  done  during  the  preceding  niue  years,  dwelling 
all  the  time  in  hotels,  passing  her  winters  at  Nice,  and  during  the 
residue  of  the  year  travelling  on  the  continent  and  in  England. 
Nice  had  for  many  years  been  her  headquarters.  She  there  retained 
one  room  in  the  hotel  for  the  storage  of  such  personal  effects  as  she 
did  not  desire  to  take  with  her  upon  her  travels.  The  same  reasons 
which  had  theretofore  prevented  her  from  returning  to  what  she  in- 
variably called  her  home,  still  continued  to  exist.  She  had  failed 
to  recover  the  health  of  which  she  was  in  pursuit,  and  her  physicians, 
still  continued  to  advise  her  that  her  health  would  not  permit  her  to 
make  the  voyage  home.  But  up  to  the  time  of  her  death  she  retained 
her  property  and  investments  in  this  State,  made  no  investments 
abroad,  did  not  purchase  or  even  hire  a  permanent  place  of  residence, 
and  lived  continually  in  hotels. 

Rut  after  the  execution  of  the  will  there  was  a  change  in  the  tenor 
of  her  correspondence,  and  in  some  of  her  oral  declarations  on  the 
subject  of  returning  to  what  she  still  continued  to  call  her  home,  and 
it  is  upon  these  declarations  that  the  contestants'  case  principally 
rests.  In  all  her  correspondence,  up  to  the  time  of  the  making  of 
the  will,  whenever  the  subject  was  alluded  to,  she  had  clearly  exhib- 


SECT.  I.]  DUPUY   V.    WURTZ.  195 

ited  not  oul}'  au  intention,  but  a  determination  and  expectation  of 
returning  as  soon  as  her  health  should  permit,  and  in  many  instances 
she  had  mentioned  a  definite  period  for  the  continuance  of  her  sojourn 
abroad,  and  in  others  down  to  October,  in  1868,  she  placed  the  con- 
tinuance of  her  stay  upon  the  ground  that  her  physicians  would  not 
permit  her  to  return. 

On  the  20th  of  April,  1868,  she  wrote  to  Mr.  Seymour:  "Dr. 
Pantaleone  has  told  me  very  plainly  that  he  cannot  permit  me  to 
cross  the  Atlantic;  that  1  have  no  strength  to  combat  a  voyage,  and 
all  the  trials  thai  are  to  meet  me  on  my  arrival.  So  here  I  am."  On 
the  29th  of  September  she  again  writes:  "In  fact  with  that  and 
other  troubles  I  have  been  ill,  and  have  been  put  back  three  years  in 
my  convalescence.  Now  I  never  expect  to  be  well."  And  on  the 
od  of  October,  1868,  she  says  to  Mrs.  Seymour:  "But  my  nervous 
system  has  been  shattered,  and  after  the  experience  of  the  past  year 
(in  heavy  trials)  I  see  why  my  physicians  have  not  wished  me  to  go 
home.  ...  Do  you  not  think  my  articles  ought  to  be  in  one  place^ 
except  the  silver?  " 

The  first  letter  of  all  the  series  in  evidence,  bearing  upon  the  ques- 
tion of  an  abandonment  of  the  intention  to  return,  was  written  on  the 
21st  of  November,  1868,  the  very  day  of  the  execution  of  the  will. 
It  is  addressed  to  Mrs.  Seymour.  In  it  the  testatrix  says:  "I  am 
now  in  Dr.  Pantaleone' s  care,  and  find  all  three  physicians.  Dr. 
Vallery  in  Rome,  Dr.  Mannoir  in  Geneva,  and  Dr.  Pantaleone,  agree 
that  it  is  rest  and  tranquillity  of  mind  is  very  important  to  me. 
Many  thanks  for  your  kind  wishes.  But  except  to  see  a  few  friends 
I  have  no  inducement  to  return  to  America.  My  nerves  would  not 
endure  the  shock,  and  it  is  plain  that  my  life  is  more  quiet  here.  But 
I  do  not  intend  to  expatriate  myself,  and  hold  firmly  to  my  allegiance 
to  my  beloved  country."  In  her  will,  bearing  date  the  same  day, 
she  makes  the  following  declaration:  "As  I  have  for  several  years 
resided  in  Europe,  sojourning  now  at  one  place,  and  now  at  another, 
as  my  health  and  comfort  have  required,  I  deem  it  proper  for  me  here 
to  say,  that  I  consider  my  home  and  residence  as  still  being  in  the 
city  of  New  York,  in  my  beloved  country,  the  United  States  of 
America."  August  .')th,  1869,  from  Geneva  she  writes  to  Mrs.  Sey- 
mour as  follows:  "I  think  Charles  is  staying  in  Europe  on  my 
account,  and  I  never  expect  to  return.  But  I  feel  badly  at  any  sacri- 
fice for  me.  But  Dr.  Pantaleone  is  correct.  Any  mortil  excitement 
upsets  me  away  from  turbulent  spirits,  and  there  is  much  to  worry 
me  at  home."  And  on  the  KUii  of  October,  1870,  the  last  date  of 
the  series  of  letters  in  evidence,  she  writes  to  Mrs.  Courtney:  "I 
never  can  live  in  a  cold  cliniale  again,  and  the  few  years  I  have  to 
live,  I  want  to  live  in  couifoit  and  repose." 

These  are  all  the  written  declarations  of  the  testatrix  bearing  upoi» 
the  question.  There  was  also  evidence  of  oral  declarations,  but  they 
do  not  throw  any  additional  light  upon  the  intentions  of  the  testatrix. 


196  DUPUY    V.   WUKTZ.  [chap.  II. 

Mary  Brown,  a  colored  servant,  who  was  in  the  service  of  the  deceased 
during  all  her  stay  in  Europe,  testified  that  she  always  said,  of  late 
years,  that  she  never  would  return  to  America.  That  the  doctors 
told  her  she  was  not  able  to  come,  and,  finally,  she  gave  it  up,  and 
said  she  would  not  come.  Mrs.  Slemmer  testified  that,  at  Geiievu, 
in  the  summer  of  1870,  Mrs.  Wurtz  said  to  her,  "I  know  when  I  am 
well  off,  indeed  I  am  not  going  back;  I  should  never  have  any  com- 
fort if  I  did."  She  said  she  had  no  intention  of  returning,  and  had 
let  her  house  and  disposed  of  her  furniture.  Mr.  Sandford  testified 
that  he  had  frequently  spoken  to  her  of  her  returning  to  America,  and 
her  reply  invariably  was  that  she  could  not  come,  that  her  health 
would  not  admit  of  it.  Mr.  Gray  and  Mr.  Aldis  testified  substan- 
tially to  the  same  effect. 

This  is,  in  substance,  all  the  evidence  in  the  case  tending  to  show 
a  change  of  domicile.  The  present  is  one  of  the  exceptional  cases 
in  which  the  duty  devolves  upon  this  court  to  pass  upon  the  facts  as 
well  as  the  law.  And  we  think  that  the  conclusion  of  fact,  fairly  to 
be  drawn  from  all  the  evidence,  is  that  the  testatrix,  after  having  long 
and  consistently  entertained  the  intention  of  returning,  had  finally 
become  satisfied  that  the  state  of  her  health  and  nerves  was  such  that 
she  would  be  unable  to  return  to  her  home,  and  would,  in  all  proba- 
bility, die  abroad.  At  the  same  time  it  establishes  no  intention  to 
adopt  a  foreign  domicile,  but  that  she  desired  and  claimed  to  retain 
her  domicile  of  origin,  and  to  have  her  estate  administered  according 
to  the  laws  of  the  State  of  New  York.  This,  the  learned  counsel  for 
the  contestants  contends,  the  law  would  not  permit  her  to  do.  That 
her  long-continued  stay  in  Europe,  in  connection  with  her  final  aban- 
donment of  the  idea  of  returning  to  New  York:  her  dwelling,  during 
the  winter  of  each  year,  at  Nice,  furnishing,  in  part,  the  rooms  which 
she  occupied  in  the  hotel;  the  removal  to  that  place  of  a  portion  of 
her  personal  effects,  her  hiring  an  apartment  in  the  hotel  by  the  year 
for  the  storage  of  such  articles  as  she  did  not  carry  with  her  on  her 
summer  travels,  and  always  returning  to  the  same  place,  afforded  such 
clear  evidence  of  the  abandonment  of  her  domicile  in  New  York,  and 
adoption  of  a  new  domicile  at  Nice,  that  no  claim  on  her  part  to 
continue  to  be  considered  a  citizen  and  resident  of  New  York  could 
preserve  her  domicile  of  origin;  and  he  has  cited  numerous  authori- 
ties in  support  of  these  positions. 

An  examination  of  these  authorities  will  show  that  they  proceed 
upon  the  ground  that  the  person  whose  domicile  was  in  question  had 
actually  settled  in  a  new  residence,  with  the  intention  of  making  it  a 
permanent  home;  that  this  intention  was  manifested  by  unequivocal 
acts  which  outweighed  any  declarations  to  the  contrary,  and  the 
intention  was  found  as  matter  of  fact. 

The  principal  cases  I'eferred  to  in  this  connection  are  Stanley  v. 
Bernes,  3  Hagg.  Ecc.  R.  373;  In  re  Steer,  3  H.  &  N.  594;  Ander- 
son V.   Laneuville,   9  Moore  Priv.   C.   Cases,   325;    Hoskins  v.   Mat- 


SECT.  I.]  DUPUY   V.   WURTZ.  l'J7 

thews,  35  Eng.  L.  &  Eq.  o40;  Whicker  y.  Hume,  13  Beav.  3S4;  7 
H.  L.  124;  Hegeman  v.  Fox,  31  Barb.  475;  Ennis  v.  Smith,  14 
How.  U.  S.  423. 

Ill  Stanley  v.  Bernes,  the  testator,  a  British  subject,  had  been  natu- 
ralized in  Portugal,  and  the  point  decided  was  that  a  British  subject 
might  acquire  a  domicile  abroad  (a  proposition  which  had  been  dis- 
[)ured.  Curling  v.  Thornton,  2  Addams'  R.  19),  and  that  his  claim  to 
be  considered^'a  British  subject  did  not  destroy  his  foreign  domicile. 
It  re  Steer,  the  testator  had  resided  many  years  in  Hamburg,  and 
had  been  regularly  constituted  a  burgher  of  that  city  to  enable  him  to 
trade  there.  In  his  will,  made  while  on  a  visit  to  England,  he  recited 
those  facts,  and  his  intention  to  return  to  Hamburg,  and  at  the  same 
time  declared  that  he  did  not  mean  to  renounce  his  domicile  of  origin 
as  an  Englishman.  The  court  in  that  case  conceded  the  principle  of 
law  that  the  domicile  of  origin  continued  until  the  testator  had  mani- 
fested an  intention  of  abandoning  it  and  acquiring  another  as  his  sole 
domicile,  but  held  that  there  was  evidence  of  such  an  intention,  and 
decided,  as  matter  of  fact,  that  he  had  elected  Hamburg  as  his  domi- 
cile; that  he  thereby  necessarily  gave  up  his  English  domicile,  as  he 
could  not  retain  both,  and  that  the  declaration  in  his  will  was  unavail- 
ing. In  Anderson  v.  Laneuville  the  testator's  domicile  of  origin 
was  in  Ireland.  He  had  incontestably  changed  his  domicile  to  Eng- 
land. He  afterwards  broke  up  his  establishment  in  England  and 
moved  to  France,  where  he  bought  and  furnished  a  house,  in  which  he 
resided  permanently  for  thirteen  years.  The  contest  was  between  his 
English  and  French  domicile,  and  was  decided  as  a  question  of  fact. 
In  Hoskins  v.  Matthews,  the  decedent  was  held  to  have  acquired  a 
domicile  in  Tuscany  by  residence,  the  purchase  of  a  villa  and  the 
establishment  of  his  family  there.  Notwithstanding  his  continued 
attachment  for  his  native  country,  and  his  often  expressed  desire  to 
return  there,  and  the  fact  that  he  was  obliged,  by  his  health,  to  live 
in  a  milder  climate  than  that  of  his  birth,  the  fact  being  established 
that  he  had  formed  the  intention  of  permanently  changing  his  domi- 
cile, the  court  held  that  the  change  was  not  the  less  effectual  because 
induced  by  motives  of  health;  at  the  same  time  admitting  that  even 
a  permanent  residence  in  a  foreign  country,  occasioned  by  the  state 
of  health,  may  not  operate  as  a  change  of  the  domicile,  and  that  every 
case  must  stand  upon  its  own  circumstances. 

In  Whicker  r.  Hume,  13  Beav.  3«4,  and  7  11.  L.  124,  the  domicile 
of  origin  of  the  testator  was  in  Scotland.  The  evidence  of  an  aban- 
donment of  that  domicile,  and  the  adoption  of  a  domicile  in  England 
was  clear.  Afterward  he  went  to  France,  leaving  some  of  his  prop- 
erty in  England,  which  he  desired  a  friend  to  keep  for  him  until  his 
return.  He  died  in  Paris,  having  just  made  a  will  in  the  English 
form,  which  was  sustained. 

The  Scotch  domicile  was  regarded  as  entirely  out  of  tiie  (luestion, 
and  the  contest  was  between  the  English  and  French  domicile.  (7 
H    L.  i:'.i).) 


198  DUPUY    V.    WUKTZ.  [chap.  II. 

In  Hegeman  v.  Fox,  much  relied  upon  by  the  contestants,  the 
question  was  whether  the  testator  was  at  the  time  of  his  death  domi- 
ciled in  Florida.  He  was  a  native  of  Massachusetts,  had  been  domi- 
ciled in  New  York,  afterward  in  Williamsburgh,  and  then  removed  to 
Florida.  There  was  no  evidence  of  any  intention  to  retain  his  domi- 
cile in  Williamsburgh,  and  the  opinion  of  the  court  was  that  the 
weight  of  the  evidence  established  that  he  neither  expected  nor  in- 
tended to  return  to  the  Northern  States.  He  purchased  a  plantation 
in  Florida,  stocked  it,  and  furnished  his  house,  went  to  housekeeping, 
entered  into  the  business  of  planting,  and  made  other  family  arrange- 
ments looking  to  a  permanent  residence  there.  Upon  these  facts  it 
was  held  that  the  circumstances  that  this  change  of  residence  was 
induced  by  considerations  of  climate  and  health,  and  that  domestic 
troubles  intervening  induced  the  expression  of  an  intention  to  return 
to  New  York,  did  not  overcome  the  effect  of  his  acts,  which  clearly 
indicated  an  intention  to  make  his  permanent  home  in  Florida.  The 
case  is  well  reasoned  in  the  opinion  of  the  court,  and  does  not  conflict 
in  principle  with  the  result  at  which  we  have  arrived,  but  depends 
upon  its  own  peculiar  circumstances. 

In  F.nnis  v.  Smith  the  question  was  whether  General  Kosciusko  had 
acquired  a  domicile  in  France.  He  left  Poland  voluntarily,  came  to 
this  country,  and  afterward  went  voluntarily  to  France,  where  he 
lived  for  fifteen  years.  He  could  have  returned  to  Poland  at  any  time. 
He  was  made  a  French  citizen  by  decree  of  the  national  assembly,  of 
which  privilege  he  could  not  avail  himself  unless  he  became  domiciled 
in  France.  Residence  was,  in  that  case,  said  to  be  prima  facie  evi- 
dence of  domicile,  and  the  facts  were  held  to  establish  a  domicile  in 
France. 

In  all  these  cases  it  was  upon  the  ground  of  a  clearly  proved  volun- 
tary and  intentional  acquisition  of  a  foreign  domicile  that  the  courts 
held  the  former  domicile  abandoned. 

The  late  cases  of  Jopp  v.  Wood,  [1864]  34  L.  J.  Eq.  212,  and 
Moorhouse  v.  Lord,  10  H.  L.  284,  proceed  upon  the  ground  that  in 
order  to  acquire  a  new  domicile  there  must  be  an  intention  to  aban- 
don the  existing  domicile.  All  the  authorities  agree  that  to  effect  a 
change  of  domicile  there  must  be  an  intention  to  do  both.  Some  of 
them  hold  that  the  intention  to  do  one  implies  an  intention  to  do  the 
other.  But  in  all  the  cases  the  question  of  intention  is  treated  as 
one  of  fact,  to  be  determined  according  to  the  particular  circumstances 
of  each  case.  (See  also  Douglas  v.  Douglas,  Law  Rep.  12  Eq. 
617,  647;  The  Attorney-General  v.  The  Countess  de  Wahlstatt,  3 
Hurl.  &  Colt.  374;  Udny  r.  Udny,  L.  R.  1  Scotch  App.  441,  1070; 
White  V.  Brown,  1  Wallace,  Jr.  217.) 

In  the  present  case  we  find  no  sufficient  evidence  of  an  intention  to 
adopt  Nice  or  any  other  place  as  a  permanent  home  or  domicile.  The 
plans  of  the  testatrix  after  November,  1868,  so  far  as  disclosed,  had 
reference  to  failing  health  and  an  apprehension  that  she  might  not 


SECT.  I.]  DUPUY    V.   \VUHTZ.  199 

long  survive,  rather  than  to  adopting  and  settling  in  a  new  home. 
If  she  chose  t(j  be  a  wanderer  during  the  short  period  of  life  which 
she  supposed  might  still  remain  to  her,  she  would  not  thereby,  as  re- 
spects her  succession,  lose  her  domicile  of  origin.  (Attorney-General 
V.  Countess  of  Wahlstatt,  3  H.  &  C.  374;  White  v.  Brown,  1  Wall., 
Jr.  217.) 

Her  long  residence  abroad,  upon  which  the  contestants  rely,  is  not 
very  significant  in  this  case,  as  during  by  far  the  greater  part  of  that 
time,  in  fact  during  all  except  about  two  and  a  quarter  years  before 
her  death,  she  was  clearly  shown  to  be  a  mere  sojourner  in  Europe, 
intending  and  fully  expecting  to  return,  and  retaining  her  house  in 
New  York;  and  all  the  acts  relied  upon  to  show  the  acquisition  of  a 
domicile  in  Nice  were  done  during  that  period,  and  while  there  can 
be  no  doubt  of  her  continuing  to  be  a  citizen  of  New  York.  Her 
habit  of  spending  her  winters  iu  Nice,  her  furnishing  her  rooms, 
hii-iug  a  store-room  at  the  hotel,  tiie  bringing  out  there  of  her  nick- 
nacks  as  they  are  called,  were  all  before  she  had  given  any  evidence 
of  the  relinquishment  of  her  plan  of  return,  and  while  she  still  retained 
her  house  in  Fifth  Avenue,  New  Y'ork.  The  only  evidence  of  any 
change  consists  in  her  declarations.  These  indicate  no  intention  to 
settle  permanentl}'  in  any  particular  place,  and  are  clearly  contradic- 
tory of  any  intention  to  abandon  her  domicile  in  New  York.  A  mere 
declaration  of  intention  not  to  return  is  not  conclusive  as  to  a  change 
of  domicile.  As  well  expressed  by  Lord  Kingsdown  in  Moorhouse  v. 
Lord,  10  H.  L.  293  :  "1  can  well  imagine  a  case  in  which  a  man 
leaves  England  with  no  intention  whatever  of  returning,  but  with  a 
detej'mination  and  certainty  that  he  will  not  return."  He  then  sup- 
poses the  case  of  one  laboring  under  a  mortal  disease,  whose  physi- 
cian advises  him  that  his  life  may  be  prolonged  or  his  sufiferings 
mitigated  by  a  change  to  a  warmer  climate,  and  says  that  to  hold 
that  he  cannot  do  that  without  losing  his  right  to  the  intervention  of 
the  Pmglish  laws  as  to  the  transmission  of  his  property  after  his 
death,  would  be  revolting  to  common  sense  and  the  common  feelings 
of  humanity.  (See  S.  C.  p.  283,  per  Lord  Cranworth;  Story  Conf. 
Laws,  §§  45,  46;  Guthrie's  Savigny,  62,  63;  Munro  r.  Munro,  7  CI. 
&  Fin.  842,  876;  1  Rob.  P:cc.  R.  606;  2  Hurl.  &  Colt.  982;  3  id. 
374.) 

Unless  a  new  domicile  was  acquired,  as  has  been  already  shown, 
the  domicile  of  origin  continues,  and  must  govern,  else  there  would 
be  no  law  according  to  which  the  estate  could  be  administered,  espe- 
cially in  a  case  of  intestacy.' 

1  Ace.  Moorhouse  v.  \.«vd,  10  H.  L.  C.  272.  See  Johnstone  v.  Beattie,  10  CI.  &  F. 
42.  So  domicile  is  not  necessarily  I'liangcd  by  an  absence,  however  long  continued,  for 
pleasure,  travel,  etc.  :  Culbertson  v.  Floyd  ('ounty,  52  Iiid.  361  ;  Sears  i'.  Boston,  1  Met. 
250;  r'adwalader  v.  Howell,  18  N.  J.  L.  138.  Nor  by  ab.senco  merely  for  business: 
Easterly  v.  Goodwin,  S.'j  Conn.  279  ;  Greene  r.  Greene,  11  Pick.  410;  Hallet  r.  Bassett, 
100   Mass.  167  ;  S.  v.  Dayton,  77  Mo.  678;  see  Jopp  v.  Wood,  34   Beav.  88.     Nor  by 


200  HAKEAL  V.    HARRAL.  L*-'^^^!'-  H* 


HARRAL  V.    HARRAL. 

Court  of  Errors  and  Appeals,  New  Jersey.     1884. 

[Reported  39  New  Jersey  Equity,  279.] 

Depue,  J.^  The  domicile  of  the  testator's  parents,  at  the  time  of  his 
birth,  was  in  Bridgeport,  Connecticut.  That  was  his  domicile  of  origin. 
His  father  died  in  18G2.  In  1865  the  family  residence  in  Bridgeport  was 
sold,  and  in  18G6  his  mother  removed  to  New  York  with  all  the  family, 
except  one  son,  who  was  married,  and  had  his  household  in  Bridgeport. 
The  mother  rented  a  house  in  New  Yoik  as  a  residence  for  herself  and 
the  family,  which  they  occupied  until  her  death  in  December,  1867. 
After  his  mother's  death,  the  testator  resided  in  New  York  City  with 
his  brother,  until  he  was  appointed  house-surgeon  in  the  New  York 
Hospital,  and  had  his  residence  in  the  hospital  until  he  went  to  Europe 
in  August,  1869. 

The  decedent  went  abroad  for  the  purpose  of  acquiring  the  German 
language  and  continuing  his  professional  studies.  In  1869  he  was  in 
Paris  temporarily,  and  in  the  fall  of  that  year  left  Paris  for  Germany, 
where  he  remained  about  two  years.  He  then  went  to  Paris  again, 
and  resided  there  in  No.  8  Rue  de  la  Sorbonne,  known  as  the 
Latin  Quarter.  In  1872,  he  became  acquainted  with  the  complain- 
ant, who  lived  with  him  as  his  mistress  at  No.  8  Rue  de  la  Sorbonne 
until  they  were  married  on  the  20th  of  February,  1877.  Imme- 
diately after  their  marriage  they  began  housekeeping  in  a  house  rented 
by  him  at  Suresnes,  a  village  a  short  distance  from  Paris.  He  had  a 
lease  of  the  house  for  two  years,  and  he  and  his  wife  continued  to  occupy 
it  until  his  return  to  America,  in  May,  1878.  He  seems  to  liave  been 
attached  to  his  wife.  In  May,  1877,  he  wrote  to  Mr.  Wallis,  announc- 
ing his  marriage,  and  said  he  was  "happy  and  contented."  The  facts 
connected  with  the  residence  of  the  decedent  at  Suresnes  are  fully 
stated  in  the  opinion  of  the  chancellor,  and  need  not  be  repeated  here. 
The  chancellor,  from  the  testimony,  concluded  that  the  decedent  had 
settled  himself  in  France  to  live  there,  and  make  it  his  home.  The 
circumstances  under  which  he  was  brought  to  America  are  also  detailed 
in  the  chancellor's  opinion.  They  show  no  intention  on  the  part  of  the 
decedent  to  make  any  change  at  that  time  in  his  domicile.  The  evi- 
dence is  quite  to  the  contrary. 

A  person  sui  juris  may  change  his  domicile  as  often  as  he  pleases. 
To  effect  such  a  change,  naturalization  in  the  country  he  adopts  as  his 

absence  as  a  volunteer  soldier  :  S.  v.  Judge,  13  Ala.  805  ;  Brewer  v.  Linnaeus,  36  Me. 
428.  Nor  by  absence  to  hold  public  office  :  Dennis  v.  S.,  17  Fla.  389  ;  Walden  v. 
Canfield,  2  Rob.  (La.)  466  ;  AT'enable  v.  Panlding,  19  Minn.  488  ;  Hannon  v.  Griz- 
zard,  89  N.  C.  115.  But  in  cases  of  this  kind  the  domicile  will  of  course  be  changed 
if  the  requisite  intent  exists.  Doucet  v.  Geoghegan,  9  Ch.  Div.  441 ;  Mooar  v.  Harve)', 
128  Mass.  219  ;  Wood  v.  Fitzgerald,  3  Or.  568.  —  Ed. 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  domicile  is  given.  —  Ed 


SECT.  I.]  HARRAL    V.   HARRAL.  201 

domicile  is  not  essential.  He  need  not  do  all  that  is  necessary  to  divest 
himself  of  his  original  nationality  There  must  be  a  voluntary  change 
of  residence  ;  the  residence  at  the  place  chosen  for  the  domicile  must 
be  actual ;  to  the  fmium  of  residence  there  must  be  added  the  animus 
manendi ;  and  that  place  is  the  domicile  of  a  person  in  which  he  has 
voluntarily  fixed  his  habitation,  not  for  a  mere  temporary  or  special 
purpose,  but  with  a  present  intention  of  making  it  his  home,  unless  or 
until  something  which  is  uncertain  or  unexpected  shall  happen  to  in- 
duce him  to  adopt  some  other  permanent  home.  Haldane  v.  Eckford, 
L.  R.  8  Eq.  631  ;  King  v.  Foxwell,  L.  R.  3  Ch.  D.  518  ;  Lord  v.  Col- 
vin,  5  Jur.  (N.  S.)  351  ;  Aikman  v.  Aikman,  7  Id.  1017,  1019  ;  Douglas 
V.  Douglas,  L.  R.  12  Eq.  617,  644  ;  Udny  v.  Udny,  L.  R.  1  H.  L.  Sc. 
441  ;  Cadwalader  v.  Howell,  3  Harr.  144,  145. 

We  think  the  evidence  proves  that  the  testator's  domicile,  arising 
from  the  factum  of  residence  and  the  animus  manendi,  was,  at  the 
time  of  his  death,  by  the  Jus  gentium,  in  France. 

But  it  is  contended  that,  inasmuch  as  the  decedent  never  obtained  an 
authorization  from  the  French  government,  he  was  incapable,  by  the 
law  of  that  country,  of  acquiring  a  domicile  in  France,  and  that  there- 
fore his  domicile  of  origin,  or  his  domicile  before  he  took  up  his  resi- 
dence in  France,  either  revived,  or,  by  the  French  law,  would  govern, 
in  the  disposition  of  his  personal  estate  if  it  was  administered  upon  in 
France.  Article  XIII.  of  the  Code  Napoleon  is  relied  on  to  sustain 
this  contention.  That  article  is  in  these  words:  "The  foreigner  who 
shall  have  been  admitted  by  the  government  to  establish  his  domicile  in 
France  shall  enjoy  in  that  country  all  civil  rights  so  long  as  he  shall 
continue  to  reside  there." 

It  appears  from  the  evidence  that  the  authorization  contemplated  by 
this  article  of  the  Code  is  obtained  by  an  application  to  the  head  of  the 
government,  and  is  attended  with  formalities  almost  as  solemn  as  those 
required  for  naturalization  in  France. 

The  construction  of  this  article  was  before  the  English  courts  in 
Bremer  v.  Freeman,  10  Moore  P.  C.  306,  and  Hamilton  v.  Dallas, 
L.  R.  1  Ch.  D.  257.  and  was  somewhat  considered  in  the  New  York 
Court  of  Ai)peals  in  Dupuy  /'.  VVurtz,  53  N.  Y.  556.  In  Bremer  v. 
Freeman  it  was  held  that,  if  by  thejics  gentium,  the  decedent,  who  was 
an  English  woman  by  birth,  was  de  facto  domiciled  in  France,  the 
authorization  of  the  French  government  was  not  necessary  to  confer 
upon  her  the  right  of  testacy,  and  that  her  will,  not  executed  in  con- 
forrait}'  with  the  French  law,  was  invalid.  In  Hamilton  y.  Dallas,  Vice- 
Chancellor  Bacon  held  that  a  de  facto  domicile,  governing  the  suc- 
cession of  the  personal  estate  of  a  decedent,  might  be  acquired  by  a 
foreigner  resident  in  that  country  who  had  not  obtained  the  govern- 
ment authorization  required  by  Article  XIII.  of  the  French  Code,  as 
the  condition  for  the  enjoyment  l)y  a  foreigner  resident  in  that  country 
of  full  civil  rights.  The  learned  judge  who  prepared  the  opinion  in 
Dupuy  V.  Wurtz  expressed  a  contrary  opinion,  but  the  case  did  not  call 


202  BOKLAND   V.    BOSTON.  [CHAP.  II. 

for  a  decision  on  that  point.  The  counsel  of  the  defendants  have  pro- 
duced several  decisions  of  the  French  courts  which  hold  that,  in  cases 
of  intestacy,  the  inheritance  of  a  foreigner  domiciled  de  facto  in  France 
will  not  be  distributed  under  the  French  law  unless  he  shall  have  ob- 
tained the  authorization  required  b}'  Article  XIII.  of  the  Code.  Pepin's 
Case,  decided  in  1868  ;  Melizet's  Case,  decided  January,  1869  ;  Ott's 
Case,  decided  January,  1869  ;  Forgo's  Case,  decided  in  1875  ;  and 
Cuirana's  Case,  decided  in  1881.  It  will  be  observed  that  all  these 
cases  relate  to  the  transmission  of  property  by  inheritance,  or  b}'  testa- 
mentar}'  disposition.  They  do  not  touch  the  question  in  controvers}' 
in  this  case.  The  complainant  does  not  claim  the  property  in  dispute 
by  any  right  of  succession,  nor  does  she  dispute  the  validity  of  the  tes- 
tator's will,  as  not  being  executed  according  to  the  laws  of  France. 
The  claim  she  makes  to  the  one  half  of  the  personal  property  of  her 
deceased  husband  she  founds  upon  the  marriage  in  France,  and  the 
incidents  of  the  married  relation,  in  virtue  of  which  she  claims  that,  by 
the  French  law,  she  became  thereby  ipso  facto  entitled  to  that  share  in 
his  movable  property. 

The  French  jurists  recognize  a  distinction  between  such  a  legal  domi- 
cile as  a  foreigner  can  acquire  b}'  fulfilling  the  requirements  of  Article 
XIII.  of  the  Code,  and  will  entitle  him  to  all  the  civil  rights  of  native- 
born  Frenchmen,  and  a  domicile,  in  fact,  which  is  acquired  by  a  resi- 
dence without  compliance  with  any  legal  formalities.  The  riglit  of  a 
foreigner  to  contract  a  lawful  marriage  is  not  made  to  depend  on  the 
observance  of  such  forms  as  are  necessar}'  to  the  acquisition  of  citizen- 
ship ;  it  is  given  on  the  sole  condition  of  six  months'  residence  by 
either  of  the  parties.  Article  LXXIV.  of  the  Code  provides  that  "  the 
marriage  shall  be  celebrated  in  the  commune  in  which  the  one  or  the 
other  of  the  parties  shall  be  domiciled,"  and  declares  that  "  this  domi- 
cile shall  be  established  by  six  months'  continued  habitation  within 
the  same  commune."  These  conditions  were  fulfilled,  and  the  marriage 
was  lawfully  celebrated  under  the  French  law.^ 


BORLAND  V.  BOSTON. 
Supreme  Judicial  Court  of  Massachusetts.     1882. 

[Reported  132  Massachuseits,  89.] 

Lord,  J.^  The  evidence  tended  to  show  that  the  plaintiff  was  born  in 
Boston  in  1824,  and  had  lived  there  until  June,  1876,  when  he  sailed  for 
Europe  with  his  family.  He  testified  that  when  he  left  Boston  he  had 
definitely  formed  the  intention  of  not  returning  to  Boston  as  a  resi- 
dent; that   in  the  fall  of  1876  he  had  decided  to  make  Waterford, 

1  Jcc.  Collier  v.  Kivaz,  2  Curt.  Eccl.  855.  —  Ed. 

2  Part  of  the  opinion,  dealing  with  a  different  question,  is  omitted.  — Ed. 


SECT.  I.]  BOllLAXD    V.   BOSTON.  203 

Connecticut,  hisjresidence,  and  then  formed  the  intention  of  purchas- 
Tno:iTnTd  There,  which  he  bought  on  j\Iay  28,  1877;  and  that  he  re- 
mained in  Europe  until  1871),  when  he  returned  to  this  country,  and 
went  to  Waterford.  On  this  evidence,  the  judge  instructed  the  jury, 
"  that  a  citizen,  by  the  laws  of  this  Commonwealth,  must  have  a 
home  or  domicile  somewhere  on  the  first  day  of  May  for  the  purpose 
of  taxation;  that  in  order  to  change  such  home  or  domicile,  once 
acquired,  and  acquire  a  new  one,  the  intention  to  make  the  change 
and  the  fact  must  concur;  that  if  the  plaintiff,  with  no  definite  plan 
as  to  the  length  of  time  he  should  remain  abroad,  and  no  definite  pur- 
pose about  a  change  of  domicile,  went  to  Europe  with  his  family,  that 
would  not  effect  a  change  of  his  domicile  from  Boston,  and  he  would 
remain  liable  to  taxation  there;  but  that  if  he  left  Boston  in  1876 
with  his  family  to  reside  in  Europe  for  an  indefinite  length  of  time, 
with  the  fixed  purpose  never  to  return  to  Boston  again  as  a  place  of 
residence,  and  with  the  fixed  purpose  of  making  some  place  other  than 
Boston  his  residence  whenever  he  should  return  to  the  United  States, 
and  had  in  his  mind  fixed  upon  such  place  of  residence  before  May 
1,  1877,  and  remained  in  Europe  until  after  that  time,  he  was  not 
liable  to  this  tax  as  an  inhabitant  of  Boston  on  the  first  of  May  of 
that  year ;  that  whether  he  had  done  enough  to  make  Waterford  his 
home  or  not,  was  not  essential  in  this  case,  —  if  he  had  lost  his  home 
in  or  ceased  to  be  an  inhabitant  of  Boston  at  the  time,  he  was  not 
taxable  there." 

Certainly,  the  latter  part  of  this  instruction  would  be  understood  to 
be  in  conflict  with  the  former;  for,  not  referring  now  to  the  words 
used  by  the  judge,  the  obvious  meaning  of  the  whole  sentence  is,  first, 
to  instruct  the  jury  that  a  man  once  having  a  home  here  is  taxable 
here  until  both  the  purpose  to  change  his  home  and  the  fact  of  chang- 
ing his  home  concur;  and  afterwards  to  instruct  them  that,  if  his  in- 
tention to  make  another  j^lace  his  home  is  formed  after  he  leaves  this 
country,  aud  before  the  first  of  May,  such  intention  removes  his  lia- 
bility to  taxation,  even  although  the  fact  of  change  does  not  concur 
with  the  intention.  Although  there  is  this  obvious  inconsistency,  it 
arises  partly  from  inherent  difficulties  in  the  case,  partly  from  the  im- 
possibility of  stating  a  fixed  rule  which  shall  be  applicable  to  all 
cases,  under  the  infinite  variety  of  circumstances  attending  them,  and 
the  various  adjudications  which  have  been  made  upon  the  subject. 
The  source  of  the  dliliculty  is  in  the  use  of  words  of  exactly,  or  sub- 
stantially, or  partially,  the  same  signification,  but  at  different  times 
used  with  different  significations. 

There  are  certain  words  which  have  fixed  and  definite  significa- 
tions. "Domicile"  is  one  such  word;  and  for  the  ordinary  purposes 
of  citizenship,  there  are  rules  of  general,  if  not  universal  acceptation, 
ai)plicable  to  it.  "Citizenship,"  "habilancy,"  and  "residence"  are 
severally  words  which  may  in  the  particular  case  mean  j)recisely  the 
same  as  "domicile,"  but  very   frcijut'iitly   tlicy   ni:iy   have  oWwv  and 


204  BORLAND   V.    BOSTON.  [cHAP.  II. 


/ 


inconsistent  meanings;  and  while  in  one  use  of  language  the  expres- 
sions a  change  of  domicile,  of  citizenship,  of  habitanc}',  of  residence, 
are  necessarily  identical  or  synonymous,  in  a  different  use  of  lan- 
guage they  import  different  ideas.  The  statutes  of  this  Common- 
wealth render  liable  to  taxation  in  a  particular  municipality  those 
who  are  inhabitants  of  that  municipality  on  the  first  day  of  May  of 
the  year.  Gen.  Sts.  c.  11,  §§  6,  12.  It  becomes  important,  there- 
fore, to  determine  who  are  inhabitants,  and  what  constitutes 
habitancy. 

The  only  case  adjudged  within  this  Commonwealth,  in  which  the 
word  of  the  statute,  "inhabitant,"  is  construed  to  mean  something 
else  than  "being  domiciled  in,"  is  Briggs  v.  Rochester,  16  Gray, 
337,  although  that  decision  is  subsequently  recognized  in  Colton  v. 
Longmeadow,  12  Allen,  598.  In  Briggs  v.  Rochester,  Mr.  Justice 
Metcalf,  in  speaking  of  the  word  "inhabitant,"  says  that  it  has  not 
the  meaning  of  the  word  "domicile"  "in  its  strictly  technical  sense, 
and  with  its  legal  incidents."  He  says  also  that  the  word  "domicile  " 
is  not  in  the  Constitution  nor  in  the  statutes  of  the  Commonwealth. 
So  far  as  the  Constitution  is  concerned,  this  is  correct,  but  he  had 
evidently  overlooked  a  statute  of  ten  years  before,  in  which  the  word 
"domicile"  was  used,  and  upon  the  very  subject  of  taxation,  in  a  pro- 
viso in  these  words:  "Provided  that  nothing  herein  contained  shall 
exempt  said  person  from  his  liability  to  the  payment  of  any  tax 
legally  assessed  upon  him  in  the  town  of  his  legal  domicile."  St. 
18o0,  c.  276.  Gen.  Sts.  c.  11,  §  7.  This  language  is  a  strong  legis- 
lative assertion  that  domicile  is  the  test  of  liability  to  taxation;  and 
in  an  opinion  given  by  the  justices  of  this  court  to  the  House  of 
Representatives  in  1843,  in  reference  to  a  student's  I'ight  to  vote  in 
the  municipality  in  which  he  is  residing  for  the  purposes  of  educa- 
tion, it  was  said,  "And  as  liability  to  taxation  for  personal  property 
depends  on  domicile."     5  Met.  587,  590. 

Nor  do  we  think  that  the  opinion  in  Briggs  r.  Rochester  gives  the 
true  force  as  used  in  the  Constitution  of  the  word  "inhabitant;  "  for 
we  cannot  doubt  that  for  the  purposes  of  taxation  the  word  "inhabi- 
tant" must  be  used  in  the  same  sense  as  when  used  in  reference  to 
electing  and  being  elected  to  office;  especially  as  at  that  time  the 
payment  of  a  tax  duly  assessed  was  one  of  the  qualifications  of  an 
elector;  and  more  especially  as  the  Constitution  itself  professes  to 
give  its  definition  of  "inhabitant"  for  the  purpose  of  removing  all 
doubt  as  to  its  meaning.  Its  language  is,  "And  to  remove  all  doubts 
concerning  the  meaning  of  the  word  'inhabitant'  in  this  Constitu- 
tion, every  person  shall  be  considered  as  an  inhabitant,  for  the  pur- 
pose of  electing  nnd  being  elected  into  any  office,  or  place  within  this 
State,  in  that  town,  district,  or  plantation,  where  he  dwelleth,  or  hath 
his  home."     Const.  Mass.  c.  1,  §  2,  art.  2. 

Nor  do  we  see  how  the  construction  given  to  the  statute  is  consist- 
ent with  the  result  at  which  the  court  arrived.     The  learned  judge 


SECT.  I.]  BORLAND   V.  BOSTON.  205 

says,  "In  the  statute  on  which  this  case  depends,  we  are  of  opinion 
that  the  words  '  where  he  shall  be  an  inhabitant  on  the  first  day  of 
May,'  mean  where  he  shall  have  his  home  on  that  day."  It  is  there- 
fore clear  that  the  learned  judge  does  not  give  to  the  word  "inhabi- 
tant" the  meaning  which  the  construction  of  the  statute  before  re- 
ferred to  authorizes  him  to  give,  but  he  does  give  the  exact  definition 
of  the  Constitution,  to  wit,  "where  he  dwelleth,  or  hath  his  home;" 
for  these  words  have  not  in  the  Constitution  two  meanings,  but  the 
single  signification  given  to  them  by  the  learned  judge,  "his  home," 
the  exact,  strict,  technical  definition  of  domicile. 

We  cannot  construe  the  statute  to  mean  anything  else  than  "being 
domiciled  in."  A  man  need  not  be  a  resident  anywhere.  He  must 
have  a  domicile.  He  cannot  abandon,  surrender,  or  lose  his  domicile, 
until  another  is  acquired.  A  cosmopolite,  or  a  wanderer  up  and 
down  the  earth,  has  no  residence,  though  he  must  have  a  domicile. 
It  surely  was  not  the  purpose  of  the  Legislature  to  allow  a  man  to 
abandon  his  home,  go  into  another  State,  and  then  return  to  this 
Commonwealth,  reside  in  different  towns,  board  in  different  houses, 
public  or  private,  with  no  intention  of  making  any  place  a  place  of 
residence  or  home,  and  thus  avoid  taxation.  Such  a  construction  of 
the  law  would  create  at  once  a  large  migratory  population. 

Although  we  have  said  that  the  case  of  Briggs  v.  Rochester  has 
been  recognized  in  Colton  v.  Longmeadow,  12  Allen,  598,  yet  we 
ought  to  state  that  the  decision  in  Colton  v.  Longmeadow  was  placed 
upon  entirely  different  grounds.  It  was  there  held  that  the  plaintiff 
had  lost  his  domicile  in  Massachusetts  because  he  had  actually  left 
the  Commonwealth,  and  was  actually  m  itinere  to  his  new  domicile, 
which  he  had  left  this  Commonwealth  for  the  purpose  of  obtaining, 
and  which  in  fact  he  did  obtain.  If  it  should  be  deemed  sound  to 
hold  that  a  person,  who,  before  the  first  of  May,  with  an  intention  in 
good  faith  to  leave  this  State  as  a  residence  and  to  adopt  as  his  home 
or  domicile  another  place,  is  in  good  faith  and  with  reasonable  dili- 
gence pursuing  his  way  to  that  place,  is  not  taxable  here  upon  the 
first  of  May,  the  doctrine  should  be  limited  strictly  to  cases  falling 
within  these  facts.  And  both  of  the  cases  cited,  Briggs  v.  Rochester 
and  Colton  v.  Longmeadow,  would  fall  within  the  rule.  In  each  of 
those  cases,  the  plaintiff  had  determined,  before  starting  upon  his 
removal,  not  only  upon  his  removal,  but  upon  his  exact  destination, 
and  in  fact  established  himself,  according  to  his  purpose,  without 
delay,  and  within  a  reasonable  time. 

We  think,  however,  that  the  sounder  and  wiser  rule  is  to  make  tax- 
ation dependent  upon  domicile.  Perhaps  the  most  important  reason 
for  this  rule  is,  that  it  makes  the  standard  certain.  Another  reason 
is,  that  it  is  according  to  the  general  views  and  traditions  of  our 
people. 

One  cannot  but  be  impressed  by  certain  peculiarities  in  Briggs  v. 
Rochester.     The  bill  of   exceptions  in  Ili:it  case  begins   thus:    "It 


206  BOELAND   V.   BOSTON,  [CHAP.  IT. 

was  admitted  by  both  parties  and  so  presented  to  the  jury,  that  the 
only  question  at  issue  was  the  domicile  of  the  plaintiff  on  the  tirst  of 
May,  1858;  and  that  if  he  was  then  an  inhabitant  of  the  defendant 
town,  the  tax  was  rightly  imposed;  but  that  if  he  was  not  on  that  day 
an  inhabitant  of  said  town,  he  was  not  then  rightly  taxable  and  taxed 
therein."  Nothing  can  be  more  clear  than  that  all  parties  understood, 
and  the  case  was  tried  upon  the  understanding,  that  domicile  and  in- 
habitancy meant  the  same  thing;  otherwise,  domicile,  instead  of 
being  "the  only  question  at  issue,"  would  not  have  been  in  issue  at 
all.  And  the  judge  in  giving  his  opinion  sa3's  that,  if  domicile  in  its 
strictly  technical  sense,  and  with  its  legal  incidents,  was  the  control- 
ling fact,  the  plaintiff  was  rightly  taxed  in  Rochester. 

Another  noticeable  fact  in  Briggs  v.  Rochester  is  this,  that  if  the 
tax-payer  in  the  pursuit  of  his  purpose  is  beyond  the  line  of  the  State 
before  the  first  of  Ma}',  he  is  not  liable  to  taxation  in  the  State;  but 
if  by  detention  he  does  not  cross  the  line  of  the  State  till  the  first  of 
May,  he  is  taxable  here.  We  cannot  adopt  a  rule  which  shall  make 
liability  to  taxation  depend  upon  proximity  to  a  State  line. 

We  have  said  that  we  prefer  the  test  of  domicile,  because  of  its  cer- 
tainty and  because  of  its  conformity  to  the  views  and  traditions  of 
our  people,  and,  we  may  add,  more  in  accordance  with  the  various 
adjudications  upon  the  subject  in  this  State,  and  more  in  accord  with 
the  general  legal  and  judicial  current  of  thought.  It  is  true,  that, 
as  said  by  Mr.  Justice  Metcalf,  "it  has  repeatedly  been  said  by  this 
and  other  courts,  that  the  terms  'domicile,'  'inhabitancy,'  and 
'residence  'have  not  precisely  the  same  meaning."  But  it  will  be 
found  upon  examination  that  these  three  words  are  often  used  as  sub- 
stantially signifying  the  same  thing. 

In  one  of  the  earliest  cases,  Harvard  College  v.  Gore,  5  Pick.  370, 
377,  Chief  Justice  Parker,  in  defining  the  word  "inhabitant"  as 
used  in  the  laws,  defined  it  as  one  which  imported  not  only  domicile, 
but  something  more  than  domicile.  "It  imports  citizenship  and 
municipal  relations,  whereas  a  man  may  have  a  domicile  in  a  country 
to  which  he  is  an  alien,  and  where  he  has  no  political  relations.  .  .  . 
An  inhabitant,  by  our  Constitution  and  laws,  is  one  who  being  a 
citizen  dwells  or  has  his  home  in  some  particular  town,  where  he  has 
municipal  rights  and  duties,  and  is  subject  to  particular  burdens; 
and  this  habitancy  may  exist  or  continue  notwithstanding  an  actual 
residence  in  another  town  or  another  country."  There  are  other 
passages  in  the  same  opinion  which,  although  used  alio  iHtuitu,  yet 
clearly  indicate  the  current  of  judicial  thought;  for  example,  "The 
term  '  inhabitant '  imports  many  privileges  and  duties  which  aliens 
cannot  enjoy  or  be  subject  to,"  p.  373;  "does  not  fix  his  domicile  or 
habitancy,"  p.  372;  "a  pretended  change  of  domicile  to  avoid  his 
taxes,"  p.  378.  There  are  other  similar  expressions  running  through 
the  whole  opinion. 

In  Lyman  v.  Fiske,  17  Pick.  231,  the  views  of  Chief  Justice  Parker 


SECT.  I.]  BORLAND    V.    BOSTON.  207 

in  Harvard  College  v.  Gore  were  considered  by  Chief  Justice  Shaw; 
and  although  expressing  no  dissent  from  the  views  of  Chief  Justice 
Parker,  it  is  evident  that  in  his  apprehension  the  word  "inhabitant" 
as  used  in  the  Constitution  imported  one  domiciled,  and  he  did  not 
deem  it  important  to  consider  whether  it  imported  anything  else  in 
relation  to  political  rights,  duties,  and  liabilities  than  the  word  "domi- 
ciled" would  import.  But  as  the  views  of  that  magistrate  are  never 
to  be  slightly  regarded,  and  as  he  gave  the  opinion  in  both  the  cases 
decided  by  this  court,  cited  by  Mr.  Justice  Metcalf  as  settling  that 
the  words  "domicile,"  "habitancy,"  and  "residence"  have  not  pre- 
cisely the  same  meaning,  we  cite  from  his  opinion  to  show  what  his 
views  were  of  "domicile"  and  "habitancy."  "In  some  respects,  per- 
haps, there  is  a  distinction  between  habitancy  and  domicile,  as 
pointed  out  in  the  case  of  Harvard  College  v.  Gore,  5  Pick.  377,  the 
former  being  held  to  include  citizenship  and  municipal  relations. 
But  this  distinction  is  believed  to  be  of  no  importance  in  the  present 
case;  because  all  the  facts  and  circumstances  which  would  tend  to 
fix  the  domicile  would  alike  tend  to  establish  the  habitancy.  It  is 
difficult  to  give  an  exact  definition  of  '  habitancy.'  In  general  terms, 
one  may  be  designated  as  an  inhabitant  of  that  place  which  consti- 
tutes the  principal  seat  of  his  residence,  of  his  business,  pursuits,  con- 
nections, attachments,  and  of  his  political  and  municipal  relations. 
It  is  manifest,  therefore,  that  it  embraces  the  fact  of  residence  at  a 
place,  with  the  intent  to  regard  it  and  make  it  his  home.  The  act 
and  intent  must  concur,  and  the  intent  may  be  inferred  from  declar- 
ations and  conduct." 

It  is  entirely  clear  that  in  his  opinion,  so  far  as  relates  to  municipal 
rights,  privileges,  and  duties,  there  is  substantially  no  distinction 
between  "domicile"  and  "habitancy."  And,  as  further  illustrating 
the  views  of  that  magistrate  and  the  general  sentiment  of  our  people 
•as  to  the  use  of  such  language  in  legislative  enactments,  we  cite  his 
language  in  Abington  V.  North  Bridgewater,  23  Pick.  170,  176:  "In 
the  several  provincial  statutes  of  1692,  1701,  and  1767,  upon  this  sub- 
ject, the  terms  '  coming  to  sojourn  or  dwell,'  '  being  an  inhabitant,' 
^  residing  and  continuing  one's  residence,'  '  coming  to  reside  and 
<lwell,'  are  frequently  and  variously  used,  and,  we  think,  they  are 
used  indiscriminately,  and  all  mean  the  same  thing,  namelj',  to  desig- 
nate the  place  of  a  person's  domicile.  This  is  defined  in  the  Consti- 
tution, c.  1,  §  2,  for  another  purpose,  to  be  the  place  '  where  one 
dwelleth,  or  hath  his  home.'  " 

Authorities  could  be  multiplied  almost  indefinitely  in  which  it  has 
been  held  by  this  court  that,  so  far  as  it  relates  to  municipal  rights, 
privileges,  powers  or  duties,  the  word  "  inhal)itaiit"  is,  with  the  excep- 
tions before  referred  to,  universally  used  as  signifying  precisely  the 
same  as  one  domiciled.  See  Thorndike  v.  Boston,  1  Met.  242,  24'): 
Sears  v.  Boston,  1  Met.  2r)0,  252;  F.lanchard  v.  Stearns,  .'>  Met.  2!».s, 
304;  Otis  V.  Boston,  12  Cush.  44,  49;  Bulkley  r.  Williamstown,  3 
Gray,  493,  494. 


208  BOKLAND   V.   BOSTON.  [CHAP  II. 

As  illustrative,  however,  of  the  fact  that  domicile  and  habitancy 
are,  for  the  ordinary  purposes  of  citizenship,  such  as  voting,  liability 
to  taxation  and  the  like,  identical,  and  that  when  they  are  susceptible 
of  different  meanings  they  are  used  alio  Intiiifu,  we  cite  the  language 
of  Chief  Justice  Shaw  in  Otis  (•.  Boston,  12  Cush.  44,  49:  "Perhaps 
this  question  has  heretofore  been  somewhat  complicated,  by  going 
into  the  niceties  and  peculiarities  of  the  law  of  domicile,  taken  in  all 
its  aspects;  and  there  probably  may  be  cases  where  the  law  of  domi- 
cile, connected  with  the  subject  of  allegiance,  and  affecting  one's 
national  character,  in  regard  to  amity,  hostility,  and  neutrality,  is 
not  applicable  to  this  subject.  But  as  a  man  is  properly  said  to  be 
an  inhabitant  where  he  dwelleth  and  hath  his  home,  and  is  declared 
to  be  so  by  the  Constitution,  for  the  purpose  of  voting  and  being 
voted  for;  and  as  one  dwelleth  and  hath  his  home,  as  the  name  im- 
ports, where  he  has  his  domicile,  most  of  the  rules  of  the  law  of  domi- 
cile apply  to  the  question,  where  one  is  an  inhabitant." 

A  very  strong  case  of  retention  of  domicile,  while  in  itinere  to  a 
new  one  which  is  subsequently  reached,  is  Shaw  v.  Shaw,  98  Mass. 
158,  in  which  the  court  say  that  the  rule  of  Col  ton  v.  Longmeadow, 
which  merely  followed  Briggs  v.  Rochester,  "is  such  an  exception  to 
the  ordinary  rule  of  construction  as  ought  not  to  be  extended." 

Upon  the  whole,  therefore,  we  can  have  no  doubt  that  the  word 
"inhabitant"  as  used  in  our  statutes  when  referring  to  liability  to 
taxation,  by  an  overwhelming  preponderance  of  authority,  means 
"one  domiciled."  While  there  must  be  inherent  difficulties  in  the 
decisiveness  of  proofs  of  domicile,  the  test  itself  is  a  certain  one; 
and  inasmuch  as  every  person  by  universal  accord  must  have  a  domi- 
cile, either  of  birth  or  acquired,  and  can  have  but  one,  in  the  present 
state  of  society  it  would  seem  that  not  only  would  less  wrong  be 
done,  but  less  inconvenience  would  be  experienced,  by  making  domi- 
cile the  test  of  liability  to  taxation,  than  by  the  attempt  to  fix  some 
other  necessarily  mo?'e  doubtful  criterion. 

Whether  the  cases  of  Briggs  v.  Rochester  and  Colton  v.  Long- 
meadow  should  be  followed  in  cases  presenting  precisely  similar 
circumstances,  the  case  at  bar  does  not  require  us  to  decide;  and  we 
reserve  further  expression  of  opinion  on  that  question  until  it  shall 
become  necessary  for  actual  adjudication.  If  they  are  to  be  deemed 
authority,  they  should  certainly  be  limited  to  the  exact  facts,  where 
a  person  before  leaving  this  Commonwealth  has  fixed  upon  a  place 
certain  as  his  future  home,  and  has  determined  to  abandon  this  Com- 
monwealth for  the  purpose  of  settling  in  his  new  home,  and  is,  upon 
the  first  of  May,  without  the  Commonwealth,  in  good  faith  and  with 
reasonable  despatch  actually  upon  his  way  to  his  new  home.  The 
plaintiff  does  not  bring  himself  within  this  rule;  for  although  he 
might  have  left  the  Commonwealth  with  the  fixed  purpose  to  abandon 
it  as  a  residence,  he  did  not  leave  it  on  his  way  to  a  place  certain 
which  he  had  determined  upon  as  his  future  residence,  and  was  pro- 


SECT.  I.]  YOUNG   V.   POLLAK.  -09 

ceeding  to  with  due  despatch;  and,  upon  the  general  rule  that,  having 
had  a  domicile  in  this  Commonwealth,  he  remains  an  inhabitant  for 
the  purpose  of  taxation  until  he  has  acquired  a  new  domicile,  the 
intention  and  fact  had  not  concurred  at  the  time  when  this  tax  was 
assessed.  The  instructions  of  the  presiding  judge,  therefore,  inas- 
much as  they  were  not  based  upon  the  rules  here  laid  down,  were  not 
accurately  fitted  to  the  facts  of  the  case,  and  the 

Exceptions  must  be  sustained.^ 


YOUNG  V.   POLLAK. 

Supreme  Court  of  Alabama.     1888. 
[Reported  85  Alabama,   439.] 

The  ptatntiffs  were  merchants  in  the  city  of  Montgomery,  suing  on 
common  counts  for  goods  sold  and  deUvered  to  Mrs.  Effie  Young,  the 
defendant,  who  was  a  married  woman.  The  defendant  pleaded  the 
general  issue,  and  a  special  plea  averring  her  coverture  ;  the  plaintiffs 
replied,  alleging  that  her  husband  had  abandoned  her,  and  had 
removed  from  the  State,  and  thereafter  the  defendant  carried  on 
business  on  her  own  account  and  in  her  own  name,  as  if  sole  and 
unmarried.'^ 

Stone,  C.  J.  The  fourth  charge  given  at  the  request  of  plain 
tiffs  in  each  of  these  cases  is  in  the  following  language:  "  If  W.  L. 
Young,  husband  of  defendant,  removed  into  the  State  of  Alabama  as 
a  place  of  refuge,  or  to  escape  arrest  in  the  State  of  Georgia,  and  that 
was  his  sole  purpose,  this  would  not  give  him  a  domicile  in  Alabama." 
Change  of  domicile  consists  of  an  act  done,  with  an  intent.  The  act 
is  an  actual  change  of  residence.  The  intent,  to  effect  the  change, 
must  be  to  acquire  a  new  domicile,  either  permanent  in  purpose,  or  of 
indefinite  duration.  A  temporary  habitation,  without  intent  to  make 
it  a  permanent  home,  or  one  of  indefinite  duration,  is  not  a  change  of 
domicile.  Merrill  v.  Morrisset,  76  Aia.  433  ;  5  Amer.  &  Eng.  Encyc. 
of  Law,  863. 

The  charge  copied  hinges  the  question  of  Young's  change  of  domicile 
on  the  purpose  with  which  he  moved  from  Georgia  to  Alabama.  Men 
change  their  domiciles  with  very  varying  purposes  or  motives.  The 
desire  to  live  in  a  healthier  region,  to  have  better  social  or  educa- 
tional advantages,  to  enjoy  l)etter  church  privileges,  to  be  near  one's 
relatives,  to  live  in  a  new  and  growing  country,  and  sometimes  to  be 

1  Ace.  Pfoutz  V.  Coniford,  36  Pa.  420.  No  chaii<,'e  of  domicile  takes  place  while 
one  is  in  itinert  to  a  new  domicile  :  Lamar  v.  Mahoriy,  Dudley,  92  ;  Littletield  v.  Brooks, 
50  Me.  475  ;  Bulkley  v.  Williamstowii,  3  Gray,  493 ;  Shaw  v.  Sliaw,  98  Mass.  158.  —  Ed. 

2  This  .'Statement,  containing  all  the  facts  7)ecessary  to  understand  tlie  ([uestion  of 
domicile  raised,  is  substituted  for  the  statement  of  the  reiiorter.  Part  of  the  opinion 
is  omitted.  — Kn.  14 


210  DITSON   V.   DITSON.  '  [CHAP.  II. 

relieved  of  disagreeable  surroundings,  —  these  and  man}*  more  maj-  be 
classed  among  the  purposes  —  sole  purposes,  if  you  please  —  with  which 
men  change  their  residence.  Yet,  if  the  change  be  in  fact  made  with 
the  intent  to  acquire  a  new  residence,  either  permanent  or  of  indefinite 
duration,  this  is  a  change  of  domicile.  The  intent  that  the  new  hab- 
itation shall,  or  shall  not  be,  permanent,  or  of  indefinite  duration,  and 
not  the  purpose  in  making  the  change,  is  the  pivot  on  which  the  inquiry' 
turns.     The  cit}'  court  erred  in  giving  this  charge. 

The  second  charge  at  the  instance  of  plaintiffs  in  each  of  these  cases 
needs  modification.  If  Young,  under  the  rules  declared  above,  be- 
came a  resident  of  Alabama,  then  his  return  to  Georgia  under  arrest, 
or  involuntary  confinement  there,  are,  of  themselves,  no  evidence  of  a 
change  of  domicile.-^ 


DITSON   V.   DITSON. 

Supreme  Court  of  Rhode  Island.     1856. 
[Repor-ted  4  Rhode  Island,  87.] 

Ames,  C.  J.^  Although,  as  a  general  doctrine,  the  domicile  of  the 
husband  is,  by  law,  that  of  the  wife,  ^-et,  when  he  commits  an  offence, 
or  is  guilt}'  of  such  dereliction  of  duty  in  the  relation  as  entitles  her  to 
have  it  either  partiall}'  or  totally'  dissolved,  she  not  only  ma}',  but  must, 
to  avoid  condonation,  establish  a  separate  domicile  of  her  own.'  This 
she  may  establish,  nay,  when  deserted  or  compelled  to  leave  her  hus- 
band, necessity  frequently  compels  her  to  establish,  in  a  different  judi- 
cial or  State  jurisdiction  than  that  of  her  husband,  according  to  the 
residence  of  her  family  or  friends.  Under  such  circumstances  she  gains, 
and  is  entitled  to  gain,  for  the  purposes  of  jurisdiction,  a  domicile  of 
her  own  ;  and  especially  if  a  native  of  the  State  to  which  she  flies  for 
refuge,  is,  upon  familiar  principles,  readily  redintegrated  in  her  old 
domicile.  This  is  the  well-settled  doctrine  of  law  upon  the  subject 
(Bishop  on  Marriage  and  Divorce,  §§  728-730  inch  and  cases  cited), 
and  has  b}'  no  court  been  more  ably  vindicated  than  b}'  the  Supreme 
Court  of  Massachusetts.     Harteau  v.  Harteau,  14  Pick.  181,  186. 

A  more  proper  case  for  the  application  in  favor  of  a  petitioner  for 
divorce  of  the  foregoing  principles  relating  to  the  jurisdiction  of  the 

1  One  confined  in  prison  does  not  become  domiciled  in  the  prison.  Grant  v.  Dalliber, 
11  Conn.  234  ;  Barton  v.  Barton,  74  Ga.  761.  So  one  forcibly  removed  from  his  home 
by  military  authorities  doe.s  not  lose  his  domicile.     Hardy  v.  De  Leon,  5  Tex.  211. 

Paupers  in  a  poorhouse  do  not  acquire  a  domicile  there.  Clark  v.  Robinson,  88  111. 
498.     Contra,  Sturgeon  v.  Korte,  34  Ohio  St.  525. 

Political  refugees  do  not  ordinarily  relinquish  their  domicile.  De  Bonneval  v. 
De  Bonneval,  1  Curt.  Eccl.  856  ;  Ennis  v.  Smith,  14  How.  400  (semhle)  ;  but  see  S.  v. 
De  Casinova,  1  Tex.  401.  —Ed. 

2  Part  of  the  opinion  only,  involving  the  question  of  domicile,  is  given.  —  Ed. 


gECT.  I.]  DITSON   V.  DITSON.  211 

court  over  her  case,  and  to  the  question  of  her  domicile  in  this  State, 
can  hardly  be  imagined,  than  the  case  at  bar.      The  petitioner  is  the 
(Hu-hter  of  a  native  of  this  State,  who,  though  formerly  resident  in 
Boston,  haFformanv  years  past  been  domiciled  in  his  native  place. 
Little  Compton.     Whilst  at  school,  the  petitioner  became  acquainted 
with  an  EngUshman  of  the  name  of  Ditson,  and,  in  1842,  married  him, 
without  the  knowledge  or^-onsent  of  her  parents,  in  New  \ork      Im- 
mediately after  marriage  the  couple  went  to  Europe,  and  from  thence 
toCuba,' where  they  lived  together  several  years.     Upon  their  return 
to  this'country,  she,  being  in  a  feeble  and  emaciated  condition,  he  de- 
serted her  for  ■'the  first  time  in  Boston,  and  was  absent  in  Europe,  with- 
•  out  leaving  any  provision  for  her,  for  about  two  years.      Upon   his 
return,  they  appear  to  have  lived  together  again  ;  he,  however,  giving 
every  indication  of  a  morose  as  well  as  inattentive  husband.     After  a 
short  time,  he  deserted  her  again  in  Boston,  declaring,  upon  his  leaving 
Tt  for  Europe,  that  he  cared  nothing  about  it,  or  any  person  in  it,  point- 
in^,  as  the  testimony  is  put  to  us,  to  his  unfortunate  wife      He  has 
be°en  absent  from  her  now  between  three  and  four  years,  without  com- 
municating with  her.  or  providing,  though  of  sufficient  ability,  anything 
for  her  support,  nor  does  she  know  where  he  is,  except  that  he  has  gone 
to  Europe.     In  the  mean  time,  deserted  as  she  was,  she  was  obliged  to 
return  to  her  father's  house  in  Little  Compton  ;  where,  during  this  time, 
supported  by  him  or  by  her  own  exertions,  she  has  resided    with  the 
exception  of  about  three  months   passed  by  her  in  Newport,  Rhode 
Island      For  this  desertion  and  neglect  to  provide  for  her,  the  proot, 
ex  parte  it  is  true,  but  coming  from  respectable  sources,  finds  no  excuse 
in  her  conduct,  which,  according  to  it,  has  always,  so  far  as  known, 
been  that  of  a  dutiful  and  faithful  wife.   .   .   .  Whatever  was  the  lormer 
domicile  of  the  petitioner,  we  are  satisfied  that  she  is,  and  has,  for  up- 
sards^of  the  last  three  years,  been  a  domiciled  citizen  of  Rhode  Island, 
—  her  only  home,  in  the  house  of  her  father.^ 

1  -The  law  will  recognize  a  wife,  as  having  a  separate  existence,  an-l  separate  inter- 
ests  and  separate  rights,  in  those  cases  where  the  express  object  of  all  proceedings  is  to 
t;  that  tie  relation  itself  ought  to  be  .lissolved,  or  so  .odihed  as  to  -tj^bhsh  se^.a- 
rate  interests,  and  especially  a  separate  dondcile  an.l  home,  bed  and  ^ard  »-">f;  P»  -  a 
part  for  the  ^hole,  as  expressive  of  the  idea  of  homo..     Otherwise,  the  partu-    in  tin 
relet  would  stand  upon  very  une,ual  grounds,  it  being  in  the  power  oi  the  husband 
o  cTan^^e  his  don.icile  at  will,  but  not  in  that  of  the  wife.     The  husband  might  deprive 
he  wife"of  the  means  of  enforcing  her  rights,  and  in  effect  ot  the  rights    heruselves, 
and  of  the  protection  of  the  laws  of  the  Commonwealth,  at  the  same  tune    hat  his  own 
misconduct  gives  her  a  right  to  be  rescued  from  his  power  on  account  of  »;-  own  m.. 
conduct  towards  her."     Shaw,  C.  J.,  in  Harteau  v.  Harteau,  14  Pick.   181  She 

may  acquire  a  separate  domicile  whenever  it  is  necessary  or  i.roper  that  she  should  do 
r  The  ri"ht  springs  from  the  necessity  for  its  exercise,  and  endures  as  long  as  the 
necessity  c^ntiuu  s."  Swayne,  J.,  in  Cheever  ..  Wilson,  9  NVall.  108.  Ac.c.  Hanbury 
Th  nbi;  20  Ala.  629  ;  Chapn.an  ..  Chap'-n  12»  111.  380  ;  Hunt  .  Hunt,  .2  NY- 
217  Conra,  Velverton  ..  Yelverton,  1  Sw.  &  Tr.  574  ;  Maguin.  ."•  ^';^«'"";  .^^  l^■'".^• 
181  •  and  seeHinds  ..  Hinds,  1  la.  36.  In  some  jurisdictions  it  is  held  that  if  a  ..fe 
is  livin-  apart  fron.  her  husband  for  cause,  she  vucst,  for  purposes  of  divorce,  have  a 


212  LAMAK    r.    MICOU.  [CHAP.  U. 

LAMAR    r.   MICOU. 

Supreme  Court  of  the   Uxited  States.     1SS4. 

[Reported  112  United  States.  452] 

Tms  is  an  appeal  bv  the  executor  of  a  guardian  (Lamar")  from  a 
decree  of  tiie  Circuit  Court  of  tlie  United  States  for  the  Southern  Dis- 
trict of  New  York,  in  favor  of  the  plaintifl",  the  administratrix  of  his 
ward.  The  bill  praved  for  an  account  of  the  ward's  estate.  The 
guardian  alleged  that  the  property  had  been  lost  through  unfortunate 
investments  ;  and  the  question  was  whether  the  law  which  governed 
the  duties  of  the  guardian  permitted  such  investmeiits.^ 

Gkat,  J.  An  infant  cannot  change  his  own  domicile.  As  infants 
have  the  domicile  of  their  father,  he  may  change  their  domicile  by 
changing  his  own;  and  after  his  death  the  mother,  while  she  remains  a 
widow,  may  likewise,  by  changing  her  domicile,  change  the  domicile 
of  the  infants  :  the  domicile  of  the  children,  in  either  case,  following 
the  independent  domicile  of  their  parent.  Kennedy  v.  Ryall.  67  N.  Y. 
379  :  Potinger  v.  Wightman,  3  Meriv.  67  :  Uedham  v.  Xatick.  1*3  Mass. 
135;  Dicey^on  Domicile,  97-99.  But  when  the  widow,  by  marrying 
again,  acquires  the  domicile  of  a  second  husband,  she  does  not.  be- 
taking her  children  by  the  first  husband  to  live  with  her  there,  make 
the  domicile  which  she  derives  from  her  second  husband  their  domicile  ; 
and  they  retain  the  domicile  which  they  had,  before  her  second  mar- 
riase,  acquired  from  her  or  from  their  father.  Cumner  r.  Milton,  3 
Safk.  259  ;  s.  c.  Holt.  578  :  Freetown  v.  Taunton,  16  Mass.  52  ;  School 
Directors  i:  James.  2  Watts  &  Sergeant.  568  :  .Johnson  v.  Copelaud, 
35  Alabama.  521  :  Brown  v.  Lynch.  2  Bradford.  214  ;  Mears  v.  Sinclair, 
1  West  Virginia,  185  ;  Pothiers  Introduction  Generale  aux  Coutumes. 
No.  19  ;  1  Burge  Colonial  and  Foreign  Law.  39  ;  4  Phillimore  Inter- 
national Law  (2d  ed.)  §  97. 

The  preference  due  to  the  law , of  the  ward's  domicile,  and  the  im- 
portance of  a  uniform  administration  of  his  whole  estate,  require  that. 
as  a  general  rule,  the   management   and   investment  of  his  property 

separate  domicile,  and  cannot  claim  that  of  her  husband.  White  c.  White,  15  R.  I. 
292,  27  Atl.  506  ;  Dutcher  v.  Dntcher,  39  Wis.  651. 

For  all  purposes  except  that  of  bringing  suit  for  divorce,  the  wife's  domicile  is  that 
of  her  husband,  even  if  she  is  living  apart  from  him.  Warrender  v.  Warrender,  9  Bligh, 
103  ;  Dolphin  v.  Bobbins,  7  H.  L.  C.  390 ;  Christie's  Succession,  20  La.  Ann.  883  ; 
Greene  v.  Windham,  13  Me.  225  ;  Greene  v.  Greene,  11  Pick.  410  ;  Hackettstown  Bank 
V.  Mitchell,  28  N.  J.  L.  516.  Contra,  Shute  v.  Sargent,  67  N.  H.  305,  infra,  p.  211. 
If  divorced  from  bed  and  board,  however,  the  wife  may  and  must  have  a  separate  domi- 
cile.    Williams  r.  Dormer,  16  Jur.  366  ;  Barbour  v.  Barbour,  21  How.  582.  —  Ed. 

1  This  short  statement  of  facts,  presenting  such  facts  as  (in  addition  to  those  stated 
in  the  extract  printed)  are  necessary  for  understanding  so  much  of  the  case  as  is 
printed,  is  substituted  for  the  statement  by  Mr.  Jusrice  Gray.  Part  of  the  opinion  is 
omitted.  —  Ed- 


SECT.  I.]  LAMAR    V.   MICOU.  213 

should  be  governed  bv  the  law  of  the  State  of  his  domicile,  especially 
when  he  actually  resides  there,  rather  than  by  the  law  of  any  State  in 
which  a  guardian  mav  have  been  appointed  or  may  have  received  some 
property°of  the  ward."  If  the  duties  of  the  guardian  were  to  be  exclu- 
sivelv  regulated  bv  the  law  of  the  State  of  his  appointment,  it  would 
follow  that  in  any  case  in  which  the  temporary  residence  of  the  ward 
was  changed  from  State  to  State,  from  considerations  of  health,  educa- 
tion, pleasure,  or  convenience,  and  guardians  were  appointed  in  each 
State,  the  guardians  appointed  in  the  different  States,  even  if  the 
same  persons,  might  be  held  to  diverse  rules  of  accounting  for  different 
parts  of  the  ward's  property.  The  form  of  accounting,  so  far  as  con- 
cerns the  remedy  only,  must  indeed  be  according  to  the  law  of  the 
court  iu  which  relief  is  sought:  but  the  general  rule  by  which  the 
guardian  is  to  be  held  responsible  for  the  investment  of  the  ward's 
property  is  the  law  of  the  place  of  the  domicile  of  the  ward.  Bar,  In- 
ternational Law,  §  106  (Gillespie's  translation) ,  438  ;  Wharton,  Con= 
tlict  of  Laws.  §  259. 

It  may  be  suggested  that  this  would  enable  the  guardian,  by  chang- 
ing the  domicile  of  his  ward,  to  choose  for  himself  the  law  by  which  he 
should  account.  Not  so.  The  father,  and  after  his  death  the  widowed 
mother,  being  the  natural  guardian,  and  the  person  from  whom  the 
ward  derives  his  domicile,  may  change  that  domicile.  But  the  ward 
does  not  derive  a  domicile  from  any  other  than  a  natural  guardian.  A 
testamentary  guardian  nominated  by  the  father  may  have  the  same 
control  of  the  ward's  domicile  that  tlie  father  had.  Wood  '•.  Wood,  5 
Paige,  596,  605.  And  any  guardian,  appointed  in  the  State  of  the 
domicile  of  the  ward,  has  been  generally  held  to  have  the  power  of 
changing  the  ward's  domicile  from  one  county  to  another  within  the 
same^State  and  under  the  same  law.  Cutts  v.  Haskins,  9  Mass.  543  ; 
Holyoke  r.  Haskins,  5  Pick.  20  ;  Kirkland  v.  Whately,  4  Allen,  462  ; 
Anderson  v.  Anderson.  42  Vermont,  350  ;  Ex  parte  Bartlett,  4  Brad- 
ford, 221  ;  The  Queen  r.  Wliitby.  L.  R.  5  Q.  B.  325.  331.  But  it  is 
very  doubtful,  to  say  the  least,  whether  even  a  guardian  appointed  in 
the  State  of  the  domicile  of  the  ward  (not  being  the  natural  guardian 
or  a  testamentary  guardian)  can  remove  the  ward's  domicile  beyond 
the  limits  of  the  State  in  which  the  guardian  is  appointed  and  to  which 
his  legal  authority  is  confined.  Douglas  v.  Douglas,  L.  R.  12  Eq.  617, 
625  ;  ''Daniel  v.  Hill.  52  Alabama.  430  ;  Story,  Confliet  of  Laws,  §  506. 
note  ;  Dicey  on  Domicile,  100,  132.  And  it  is  quite  clear  that  a  guard- 
ian appointed  in  a  State  in  which  the  ward  is  temporarily  residing  can- 
not change  the  ward's  permanent  domicile  from  one  State  to  another. 

The  case  of  such  a  guardian  differs  from  that  of  an  executor  of.  or 
a  trustee  under,  a  will.  In  tlic  one  case,  tiic  title  in  the  property  is  in 
the  executor  or  the  trustee  ;  in  the  other,  the  title  in  the  property  is  in 
the  ward,  and  the  guardian  has  only  the  custody  and  management  of 
it,  with  power  to  change  its  investment.  The  executor  or  tru.stee  is 
appointed  at  the  domicile  of  tiie  testator ;  the  guardian  is  most  fitly 


-14  LAMAR   V.    MICOU.  [CHAP.  IL 

appointed  at  the  domicile  of  tlie  ward,  and  ma}-  be  appointed  in  any 
State  in  which  the  person  or  any  property  of  the  ward  is  found.  The 
general  rule  which  governs  the  administration  of  the  property  in  the 
one  case  may  be  the  law  of  the  domicile  of  the  testator ;  in  the  other 
case,  it  is  the  law  of  the  domicile  of  the  ward. 

As  the  law  of  the  domicile  of  the  ward  has  no  extraterritorial  effect, 
except  by  the  comity  of  the  State  where  the  property  is  situated,  or 
where  the  guardian  is  appointed,  it  cannot  of  course  prevail  against  a 
statute  of  the  State  in  which  the  question  is  presented  for  adjudication, 
expressly  applicabb  to  the  estate  of  a  ward  domiciled  elsewhere. 
Hoyt  V.  Sprague,  103  U.  S.  613.  Cases  may  also  arise  with  facts  so 
peculiar  or  so  complicated  as  to  modify  the  degree  of  influence  that  the 
court  in  which  the  guardian  is  called  to  account  may  allow  to  the  law 
of  the  domicile  of  the  ward,  consistently  with  doing  justice  to  the  par- 
ties before  it.  And  a  guardian,  who  had  in  good  faith  conformed  to 
the  law  of  the  State  in  which  he  was  appointed,  might  perhaps  be  ex- 
cused for  not  having  complied  with  stricter  rules  prevailing  at  the 
domicile  of  the  ward.  But  in  a  case  in  which  the  domicile  of  the  ward 
has  always  been  in  a  State  whose  law  leaves  much  to  the  discretion  of 
the  guardian  in  the  matter  of  investments,  and  he  has  faitlifully  and 
prudently  exei'cised  that  discretion  with  a  view  to  the  pecuniary  inter- 
ests of  the  ward,  it  would  be  inconsistent  with  the  principles  of  equity 
to  charge  him  with  the  amount  of  the  moneys  invested,  merely  because 
he  has  not  complied  with  the  more  rigid  rules  adopted  b}'  the  courts  of 
the  State  in  which  he  was  appointed. 
I  The  domicile  of  William  W.  Sims  during  his  life  and  at  the  time  of 

I  his  death  in  1850  was  in  Georgia.  This  domicile  continued  to  be  the 
domicile  of  his  widow  and  of  their  infant  children  until  they  acquired 
new  ones.  In  1853,  the  widow,  by  marrying  the  Rev.  Mr.  Abercrom- 
bie,  acquired  his  domicile.  But  she  did  not,  by  taking  the  infants  to 
the  home,  at  first  in  New  York  and  afterwards  in  Connecticut,  of  her 
new  husband,  who  was  of  no  kin  to  the  children,  was  under  no  legal 
obligation  to  support  them,  and  was  in  fact  paid  for  their  board  out  of 
tlieir  property,  make  his  domicile,  or  the  domicile  derived  bj-  her  from 
him,  the  domicile  of  the  cliildren  of  the  first  husband.  Immediately 
upon  her  death  in  Connecticut,  in  1859,  these  children,  both  under  ten 
years  of  age,  were  taken  back  to  Georgia  to  the  house  of  their  father's 
mother  and  unmarried  sister,  their  own  nearest  surviving  relatives  ; 
and  the}-  continued  to  live  with  their  grandmother  and  aunt  in  Georgia 
until  the  marriage  of  tlie  aunt  in  January,  1860,  to  Mr.  Micou,  a  cit- 
izen of  Alabama,  after  which  the  grandmother  and  the  children  resided 
with  Mr.  and  Mrs.  Micou  at  their  domicile  in  that  State. 

Upon  these  facts,  the  domicile  of  the  children  was  always  in  Georgia 
from  their  birth  until  January,  1860,  and  thenceforth  was  either  in 
Georgia  or  in  Alabama.  As  the  rules  of  investment  prevailing  before 
1863  in  Georgia  and  in  Alabama  did  not  substantially  differ,  the  ques- 
tion in  which  of  those  two  States  their  domicile  was  is  immaterial  to 


SECT.  I.]  LAMAE   V.   MICOU.  215 

the  decision  of  tliis  case  ;  and  it  is  therefore  unnecessary  to  consider 
whether  their  grandmother  was  their  natural  guardian,  and  as  such 
had  the  power  to  change  their  domicile  from  one  State  to  another. 
See  Margrave's  note  66  to  Co.  Lit.  88  b  ;  Reeve,  Domestic  Relations, 
315;  2  Kent,  Com.  219;  Code  of  Georgia  of  1861,  §§  1754,  2452; 
Dardeu  v.  Wyatt,  15  Georgia,  414. 

Whether  the  domicile  of  Lamar  in  December,  1855,  when  he  was 
appointed  in  New  York  guardian  of  the  infants,  was  in  New  York  or 
in  Georgia,  does  not  distinctly  appear,  and  is  not  material ;  because, 
for  the  reasons  already  stated,  wherever  his  domicile  was,  his  duties  as 
guardian  in  the  management  and  investment  of  the  property  of  his 
wards  were  to  be  regulated  by  the  law  of  their  domicile. 

On  petition  for  re-hearing.  Gray,  J.,  said  (114  U.  S.  218):  If  the 
domicile  of  the  father  was  in  Florida  at  the  time  of  his  death  in  1850, 
then,  according  to  the  principles  stated  in  the  former  opinion,  the  dom- 
icile of  his  children  continued  to  be  in  that  State  until  the  death  of 
their  mother  in  Connecticut  in  1859.  In  that  view  of  the  case,  the 
question  would  be  whether  they  afterwards  acquired  a  domicile  in 
Georgia  by  taking  up  their  residence  there  with  their  paternal  grand- 
mother. Although  some  books  speak  only  of  the  father,  or,  in  the 
case  of  his  death,  the  mother,  as  guardian  by  nature  (1  Bl.  Com.  461 ; 
2  Kent,  Com.  219),  it  is  clear  that  the  grandfather  or  grandmother,  when 
the  next  of  kin,  is  such  a  guardian.  Hargrave,  note  'o'o^  to  Co.  Lit. 
88  h  ;  Reeve,  Dom.  Rel.  315.  See  also,  Darden  y.  Wyatt,  15  Ga.  414. 
In  the  present  case,  the  infants,  when  their  mother  died  and  they  went 
to  the  home  of  their  paternal  grandmother,  were  under  ten  years  of 
age ;  the  grandmother,  who  appears  to  have  been  their  only  surviving 
grandparent  and  their  next  of  kin,  and  whose  only  living  child,  an  un- 
married daughter,  resided  with  her,  was  the  head  of  the  family ;  and 
upon  the  facts  agreed  it  is  evident  that  the  removal  of  the  infants  after 
the  death  of  both  parents  to  the  home  of  their  grandmother  in  Georgia 
was  with  Lamar's  consent.  Under  these  circumstances,  there  can  be 
no  doubt  that  by  taking  up  their  residence  with  her,  they  acquired  her 
domicile  in  that  State  in  1859,  if  their  domicile  was  not  already  there.^ 

1  The  domicile  of  an  infant  follows  that  of  his  father:  Mctcalf  v.  Lowther,  '.)?>  Ala. 
312  ;  Kennedy  v.  Ryall,  67  N.  Y.  379  ;  and  so  long  as  the  infant  is  not  emancipated 
he  can  obtain  no  other  domicile,  though  living  away  from  his  father's  home  :  Wheeler 
V.  Burrow,  18  Ind.  14  ;  even  if  he  has  run  away  from  liome  :  Bangor  v.  Readfield,  32 
Me.  60  ;  or  has  been  bound  out  to  service  by  the  public  authorities  :  Oldtown  v.  Fal- 
mouth, 40  Me.  lOG. 

Upon  the  death  of  the  father,  the  inother's  domicile  ordinarily  becomes  that  of  the 
minor,  and  if  she  being  .sMjy«r/s  changes  her  domicile  that  of  the  child  follows  ;  subject 
perhaps  to  the  condition  that  the  change  be  made  bona  fide,  and  not  for  the  purpose  of 
securin"  an  advantage  at  the  expense  of  the  chiltl  or  the  child's  estate.  Potinger  v. 
Wightman,  3  Mer.  67;  Brown  v.  Lynch,  2  Bradf.  214  ;  School  Directors  v.  James,  2 
W.  &  S.  568.  A  posthumous  child,  therefore,  takes  the  domicile  of  the  mother  at  its 
birth:  Watson  v.  Bondurant,  30  La.  Ann.  1303  (sniiMt;).  If,  however,  the  mother 
marries  a"-ain,  since  she  is  no  longer  sni  juris,  she  cannot  affect  the  domicile  of  the 
minor:  School  Directors  i>.  James,  2  \V.   &  S.   r)(JS  ;  Ailcii  v.  Thomason,   11    ITiiiniili. 


216  SHL'TE    V.    SARGENT.  [cHAl'.  II. 

SHUTE  V.  SARGENT. 

SuPREjTE  Court  of  New  H.\mpshire.     1892. 

[Reported  67  yew  Hampshire,  305.] 

Blodgett,  J.^  The  maxim  that  the  domicile  of  the  wife  follows  that 
of  her  husband  "results  from  the  general  principle  that  a  person  who  v 
under  the  power  and  authority'  of  another  possesses  no  right  to  choose 
a  domicile.'"  Story,  Confl.  Laws,  s.  46.  "  B}'  marriage,  husband  and 
wife  become  one  person  in  law,  — that  is,  the  vei\y  being  or  legal  exist- 
ence of  the  wife  is  suspended  during  the  marriage,  or  at  least  is  incor- 
porated and  consolidated  into  that  of  the  husband,  under  whose  wing, 
protection,  and  cover  she  perforins  everything."  1  Bl.  Com.  442.  Such 
being  the  common-law  status  of  the  wife,  her  domicile  necessarily  fol- 

536  {contra,  Succession  of  Lewis,  10  La.  Ann.  789  ;  and  see  Wheeler  v.  HoUis,  19  Tex. 
522) ;  and  therefore  if  the  mother  remarries  before  the  birth  of  the  posthumous  child, 
the  child  takes  the  domicile  of  its  mother  before  the  second  marriage  :  Oxford  v. 
Bethany,  19  Conn.  229. 

An  infant  does  not  get  the  domicile  of  an  appointed  guardian  ex  officio  if  the  infant 
actually  lives  elsewhere.  Louisville  v.  Sherley,  80  Ky.  71  ;  School  Directors  v.  James, 
2  W.  &  S.  568  ;  Petigru  v.  Ferguson,  6  Rich.  Eq.  378.  The  guardian  may,  however, 
change  the  infant's  domicile  by  changing  the  actual  home  of  the  infant  within  the 
State.  Kirkland  v.  Whately,  4  All.  462  ;  contra,  Marheineke  v.  Grothaus,  72  Mo. 
204.  He  cannot,  however,  change  the  ward's  domicile  outside  the  State,  since  his 
authority  over  the  ward's  person  ceases  at  the  State  line.  Douglas  v.  Douglas,  L.  R. 
12  E(i.  617,  625;  Robins  v.  Weeks,  5  Mart.  N.  .s.  379  ;  Trammell  v.  Traunnell,  20  Tex. 
406  ;  but  see  Wood  v.  Wood,  5  Paige,  596,  605;  Wheeler  v.  Hollis,  19  Tex.  522.  .4 
fortiori  such  a  change  cannot  be  made  without  the  guardian's  consent.  Hiestand  v. 
Kuns,  8  Blackf.  345  ;  Munday  v.  Baldwin,  79  Ky.  121. 

An  emancipated  minor  may  acquire  a  new  domicile  by  his  own  will  :  Lubec  v.  East- 
port,  3  Me.  220  ;  and  such  minor  no  longer  shares  a  new  domicile  acquired  by  the 
father:  Lowell  v.  Newport,  66  Me.  78;  or  by  the  mother,  after  the  father's  death: 
Dennysville  v.  Trescott,  30  Me.  470  ;  Charlestown  v.  Boston,  13  Mass.  469.  After 
emancipation  the  father  cannot  change  the  child's  domicile.  In  re  Vance,  92  Cal.  195, 
28  Pac.  229. 

In  Georgia,  where  a  guardian  has  no  right  to  restrain  the  person  of  a  ward  twenty 
years  old,  such  a  ward  may  ac([uire  a  domicile  by  his  own  choice.     Roberts  v.  Walker, 

18  Ga.  5. 

An  apprentice  takes  the  domicile  of  his  master.     Maddox  v.  S.,  32  Ind.  111. 

An  insane  person,  though  under  guardianship,  may  yet  change  his  domicile  if  he  in 
fact  retains  sufficient  power  of  will.  Culver's  Appeal,  48  Conn.  165;  Concord  v. 
Rumney,  45  N.  H.  423;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13.  A  person  ?ion 
compos  from  birth,  continuing  to  live  in  his  father's  family  after  reaching  his  major- 
ity, follows  his  father's  domicile.  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611 ;  Monroe  v. 
Jackson,  55  Me.  55  ;  Upton  v.  Northbridge,  15  Mass.  237.  If  such  a  person  has  an 
appointed  guardian,  the  latter  may  change  the  domicile  of  the  ward  into  his  own  fam- 
ily by  making  him  an  inmate  of  it  :  Holyoke  v.  Haskins,  5  Pick.  20  ;  Jackaon  v.  Polk, 

19  Oliio  S.  28  :  or  even,  it  has  been  held,  to  a  new  independent  home  :  Anderson  v 
Anderson,  42  Vt.  350.  It  has  been  held  that  if  one  non  compos  becomes  emancipated 
by  the  death  of  his  parents  and  the  failure  of  appointment  of  a  guardian,  he  may  gain 
a  residence  where  he  actually  lives.     Gardiner  v.  Farmington,  45  Me.  537.  —  Ed. 

^  The  opinion  only  is  given  :  it  sufficiently  states  the  case. — Ed. 


^KCT.  l]  SHUTE    V.    SARGENT.  217 

lowed  her  husband's,  and  the  maxim  applied  without  limitation  or 
qualification. 

But  the  common-law  theoiT  of  marriage  has  largely  ceased  to  obtain 
everywhere,  and  especially  in  this  State,  where  the  law  has  long  recog- 
nized the  wife  as  having  a  separate  existence,  sejjarate  rights,  and 
separate  interests.  In  respect  to  the  duties  and  obligations  which  arise 
from  the  contract  of  marriage  and  constitute  its  object,  husband  and 
wife  are  still,  and  must  continue  to  be,  a  legal  unit;  but  so  completely 
has  the  ancient  unity  become  dissevered,  and  the  theory  of  the  wife's 
servitude  superseded  by  the  theory  of  equality  which  has  been  estab- 
lished by  the  legislation  and  adjudications  of  the  last  half  century,  that 
she  now  stands,  almost  without  an  exception,  upon  an  equality  with 
the  husband  as  to  property,  torts,  contracts,  and  civil  rights.  Pub.  Sts., 
c.  176  ;  ib.,  c.  90,  s.  9  ;  Seaver  v.  Adams,  66  N.  H.  142,  143,  and  au- 
thorities cited.  And  since  the  law  [)uts  her  upon  an  equality,  so  that 
he  now  has  no  more  power  and  authority  over  her  than  she  has  over 
him,  no  reason  would  seem  to  remain  why  she  may  not  acquire  a  sepa- 
rate domicile  for  every  purpose  known  to  the  law.  If,  however,  there 
are  exceptional  cases  when  for  certain  purposes  it  might  properly  be 
held  otherwise,  there  can  be  in  this  jurisdiction  no  reason  for  holding 
that  when  the  husband  has  forfeited  his  marital  rights  by  his  misbe- 
havior, the  wife  may  not  acquire  a  separate  domicile,  and  exercise  the 
appertaining  rights  and  duties  of  citizenship  with  which  married  women 
have  become  invested.  To  hold  otherwise  would  not  only  break  the 
line  of  consistency  and  progress  wliich  has  been  steadily  advanced  until 
the  ancient  legal  distinctions  between  the  sexes,  which  were  adapted  to 
a  condition  that  has  ceased  to  exist  and  can  never  return,  have  been 
largely  swept  away,  but  it  would  also  be  subversive  of  the  statutory 
right  of  voting  and  being  elected  to  office  in  educational  matters  whicli 
wives  now  possess  (Pub.  Sts.,  c.  90,  ss.  9,  14),  inasmuch  as  it  would 
compel  the  innocent  wife  to  reside  and  make  her  home  in  whatever 
voting  precinct  the  offending  husband  might  choose  to  fix  his  domicile, 
or  to  suflTer  the  deprivation  of  the  elective  franchise  ;  and  if  he  should 
remove  his  domicile  to  another  State,  and  she  should  remain  here,  the 
exercise  of  all  her  rights  dependent  upon  domicile  would  be  similarly 
aflfected. 

This  cannot  be  the  law.  On  the  contrary,  the  good  sense  of  the 
thing  is,  that  a  wife  cannot  be  divested  of  the  right  of  suffrage,  or  be 
deprived  of  any  civil  or  legal  right,  by  the  act  of  her  husband  ;  and  so 
we  take  the  law  to  be.  Whenever  it  is  necessary  or  proper  for  her  to 
acquire  a  separate  domicile,  she  may  do  so.  This  is  the  rule  for  the 
purposes  of  divorce  (Payson  /;.  Payson,  34  N.  II.  518;  Cheever  v. 
Wilson,  9  Wall.  108,  124;  Ditson  v.  Ditson,  4  R.  I.  87,  107;  Harding 
V.  Alden,  9  Greenl.  140),  and  it  is  the  true  rule  for  all  purposes. 

Upon  these  views,  the  testatrix  was  domiciled  in  this  State  at  the 
time  of  her  decease,  and,  as  the  consequence,  distribution  of  lier  estate 
is  to  be  made  accordingly.     Goodall  v.  Marsliall,  1 1  N.  II.  MH  ;  V^inde 


218  BERGNER   &   ENGEL   BREWING   GO.    V.   DREYFUS.        [CHAP.  II. 

walker  v.  Rollins,  63  N.  H.  460,  463,  464.  The  rights  of  her  husband 
therein  are  not  affected  by  his  written  assent  to  the  will.  The  Massa- 
chusetts statute,  making  such  assent  binding,  has  no  extraterritorial 
force,  and  there  is  no  principle  upon  which  it  can  be  given  effect  in  this 
jurisdiction  without  violating  the  positive  enactments  of  our  statute 
relative  to  the  husband's  distributive  share  in  his  deceased  wife's  estate. 
Pub.  Sts.,  c.  195,  ss.  12,  13.  This  cannot  be  done.  If  the  result  shall 
be  to  give  to  this  husband  a  benefit  which  the  testatrix  did  not  intend 
he  should  receive,  and  wiiich  in  justice  he  ought  not  to  have,  it  is  to  be 
regretted  ;  but  hard  cases  cannot  be  permitted  to  make  bad  equity  any 
more  than  bad  law.  Case  discharged.^ 


BERGNER  &  ENGEL  BREWING  CO.  v.    DREYFUS. 

Supreme  Judicial  Coukt  of  Massachusetts.     1898. 

[^Reported  172  Massachusetts,  154.] 

Holmes,  J.^  This  is  a  suit  b}'  a  Pennsylvania  corporation  to  recover 
a  debt  for  goods  sold  and  delivered  here.  The  only  defence  is  a  dis- 
charge in  insolvenc}'  under  our  statutes,  which  of  course  commonly  is 
no  defence  at  all.  This  was  reaffirmed  unanimously  in  1890,  after  full 
consideration  of  the  objections  now  urged  ;  and  it  was  decided  also, 
not  for  the  first  time,  that  the  general  language  of  the  insolvent  law 
was  not  intended  to  affect  access  to  Massachusetts  courts  bj^  a  local 
rule  of  procedure  unless  the  substantive  right  was  barred  by  the  dis- 
charge. Phoenix  National  Bank  v.  Batcheller,  151  Mass.  589.  The 
grounds  urged  for  an  exception  in  the  present  case  are :  that  the  plain- 
tiff, although  its  brewery  and  main  offices  are  in  Pennsylvania,  has  an 
office  in  Boston,  and  maintains  here  a  complete  outfit  for  the  distribu- 
tion of  its  products  ;  that  it  has  a  license  of  the  fourth  class  under  Pub. 
vSts.  c.  100,  §  10;  and  that  it  has  complied  with  the  laws  regulating 
foreign  corporations  doing  business  here,  including,  we  assume,  that 
which  requires  the  appointment  of  the  commissioner  of  corporations  its 
"  attorne\-  upon  wliom  all  lawful  processes  in  an}-  action  or  proceed- 
ing against  it  may  be  served."  St.  1884,  c.  330,  §  1.  See  St.  1895, 
c.  157.  .  .  .  The  independent  ground  on  which  it  is  urged  that  the 
plaintiff  is  subject  to  the  insolvent  law  in  the  present  case  is  that  the 
plaintiff  is  domesticated  in  this  State,  as  shown  b}-  the  facts  above 
recited,  of  which  the  appointment  of  an  attorney  is  only  one.  The 
word  "  domesticated,"  which  was  used  in  the  argument  for  the  defend- 
ant, presents  no  definite  legal  conception  which  has  any  bearing  upon 
the  case.  We  presume  that  it  was  intended  to  convey  in  a  conciliatory 
form  the  notion  that  the  plaintiff  was  domiciled  here,  — "  resident,"  in 

1  Jcc.  In  re  Florance,  54  Hun,  328. — Ed. 

^  The  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Ed. 


SECT.  I.]   BEKGNER  &    EXGEL  BREWING  CO.  V.   DREYFUS.        219 

the  language  of  Pub.  Sts.  c.  157,  §  81,  —  and  therefore  barred  by  the 
language  and  legal  operation  of  the  act.  It  could  not  be  contended 
that  the  corporation  was  a  citizen  of  Massachusetts.  In  such  sense  as 
it  is  a  citizen  of  an^-  State,  it  is  a  citizen  of  the  State  which  creates 
it  and  of  no  other.  But  there  are  even  greater  objections  to  a  double 
domicile  than  there  are  to  double  citizenship.  Under  the  law  as  it  has 
been,  a  man  might  find  himself  owing  a  double  allegiance  without  any 
choice  of  his  own.  But  domicile,  at  least  for  any  given  purpose,  is 
single  b}'  its  essence.  Dice}",  Confl.  of  Laws,  95.  A  corporation  does 
not  differ  from  a  natural  person  in  this  respect.  If  an}-  person,  natural 
or  artificial,  as  a  result  of  choice  or  on  technical  grounds  of  birth  or 
creation,  has  a  domicile  in  one  place,  it  cannot  have  one  elsewhere,  be- 
cause what  the  law  means  b}-  domicile  is  the  one  technically  pre-eminent 
headquarters,  which,  as  a  result  either  of  fact  or  of  fiction,  ever}-  person 
is  compelled  to  have  in  order  that  by  aid  of  it  certain  rights  and  duties 
"which  have  been  attached  to  it  by  the  law  may  be  determined.  It  is 
settled  that  a  corporation  has  its  domicile  in  the  jurisdiction  of  the 
State  which  created  it,  and  as  a  consequence  that  it  has  not  a  domicile 
anywhere  else.  Boston  Investment  Co.  v.  Boston,  158  Mass.  461,  462, 
'Q-^  •  Shaw  V.  Quincy  Mining  Co.,  145  U.  S.  444,  450;  Martine  v.  In- 
ternational Ins.  Co.,  53  N.  Y.  339,  346.  The  so-called  modifications 
of  this  rule  by  statutes  like  the  act  of  1884  do  not  modify  it,  because 
jurisdi/jtion  of  the  ordinary  personal  actions  does  not  depend  upon 
domicile,  but  onl}-  upon  such  presence  within  the  jurisdiction  as  to  make 
service  possible.  See  In  re  Hohorst,  150  U.  S.  653.  But  the  operation 
of  our  insolvent  law  by  its  very  terms  may,  and  in  this  case  does,  de- 
pend upon  the  domicile  of  the  creditor,  and  as  there  can  be  no  doubt 
either  in  fact  or  in  law  that  the  plaintiff  was  domiciled  m  Pennsylvania 
in  such  a  sense  that  a  statute  like  Pub.  Sts.  c.  157,  §  1,  would  hit  it 
there,  it  cannot  have  been  domiciled  here  for  the  same  purpose  at  the 
same  time. 

Judgment  for  the  plaintiff  affimed} 
Field,  C.  J.,  dissenting. 

1  Ace.  Germania  F.  I.  Co.  v.  Francis,  11  Wall.  210  ;  Cook  v.  Ha^er,  3  Col.  386  ; 
Chafee  v.  Fourth  Nat.  Bank,  71  Me.  514  ;  B.  &  0.  R.  R.  v.  Glenn,  28  Md!  287. 

Dicta  in  the  English  cases  are,  however,  contra.  Newby  v.  Van  Oppen,  L.  R. 
7  Q.  B.  293  ;  Russell  v.  Cainhefort,  23  Q.  B.  D.  526.  "I  think  that  this  company 
aiay  properly  be  deemed  both  Scotch  and  English.  It  may,  for  purposes  of  juris- 
diction, be  deemed  to  have  two  domiciles.  Its  business  is  necessarily  carried  on  by 
agents,  and  I  do  not  know  why  its  domicile  should  be  considered  to  be  confined  to  the 
place  where  the  goods  are  manufactured.  The  business  transacted  in  England  is  very 
extensive.  The  places  of  business  may,  for  the  purposes  of  jurisdiction,  properly  be 
deemed  the  domicile."  —  Lord  St.  Leonards  in  Carron  Iron  Co.  v.  Maclaren  5  H.  L  C. 
416,  449.  —  Ed. 

In  Martine  v.  International  !>.  Ins.  Sof-.,  .''>3  X.  Y.  339,  an  English  company  with  a 
permanent  general  agency  in  New  York  was  held,  as  to  business  done  through  such 
agency,  to  have,  in  time  of  war,  a  commercial  (though  not  an  ordinary  civil)  domicile 
in  New  York. 


220  liAYS    V.    PACIFIC    MAIL    STEAMSHIP    CO.  [ciIAP.  II. 


HAYS   V.   PACIFIC   MAIL   STEAMSHIP  CO. 

Supreme  Court  of  the  United  States.     1855. 
[Reported  17  Howard,  .596.] 

Nelson,  J.  This  is  a  writ  of  error  to  tlie  District  Court  for  the 
Northern  District  of  California. 

The  suit  was  brouglit  in  the  District  Court  by  the  company',  to 
recover  back  a  sum  of  inone}-  which  the}'  were  com[)elIed  to  pa}-  to  the 
defendant,  as  taxes  assessed  in  the  State  of  Cahfornia,  upon  twelve 
steamships  belonging  to  them,  which  were  temporarily  within  the  jui'is- 
diction  of  the  State. 

The  complaint  sets  forth  that  the  plaintiffs  are  an  incorporated  com- 
pan^'  by  the  laws  of  New  York  ;  that  all  the  stockholders  are  residents 
and  citizens  of  that  State  ;  that  the  principal  office  for  transacting  the 
business  of  the  company  is  located  in  the  city  of  New  York,  but,  for 
the  better  transaction  of  their  business,  they  have  agencies  in  the  city 
of  Panama,  New  Grenada,  and  in  the  city  of  San  Francisco,  Califor- 
nia ;  that  they  have,  also,  a  naval  dock  and  shipyard  at  the  port  of 
Benicia,  of  that  State,  for  furnishing  and  repairing  their  steamers  ; 
that,  on  the  arrival  at  the  port  of  San  Francisco,  they  remain  no  longer 
than  is  necessary  to  land  their  passengers,  mails,  and  freight,  usual!}- 
done  in  a  day ;  they  then  proceed  to  Benicia,  and  remain  for  repairs 
and  refitting  until  the  commencement  of  the  next  voyage,  usually  some 
ten  or  twelve  days  ;  that  the  business  in  which  they  are  engaged  is  in 
the  transportation  of  passengers,  merchandise,  treasure,  and  the 
United  States  mails,  between  the  city  of  New  York  and  the  city 
of  San  Francisco,  by  way  of  Panama,  and  between  San  Francisco 
and  different  ports  in  the  Territory  of  Oregon  ;  that  the  company  are 
sole  owners  of  the  several  vessels,  and  no  portion  of  the  interest  is 
owned  by  citizens  of  the  State  of  California ;  that  the  vessels  are  all 
ocean  steamships,  employed  exclusively  in  navigating  the  waters  of  the 
ocean  ;  that  all  of  them  are  duly  registered  at  the  custom-house  in  New 
York,  where  the  owners  reside  ;  that  taxes  have  been  assessed  upon  all 
the  capital  of  the  plaintiffs  represented  by  the  steamers  in  the  State  of 
New  York,  under  the  laws  of  that  State,  ever  since  they  have  been 
employed  in  the  navigation,  down  to  the  present  time;  that  the  said 
steamships  have  been  assessed  in  the  State  of  California  and  county  of 
San  Francisco,  for  the  year  beginning  1st  July,  1851,  and  ending  30th 
June,  1852,  claiming  the  assessment  as  annually  due,  under  an  act  of 


SECT.  II.  J  KAYS    v.    rACIFIC    MAIL    STEAMSHIP    CO. 


221 


the  legislature  of  the  State ;  that  tlie  taxes  assessed  amount  to 
$11,962.50.  ami  w.-re  paid  under  protest,  after  one  of  the  vessels  was 
advertised  for  sale  hy  tiie  defendant,  in  order  to  prevent  a  sale  of  it. 

To  this  com[)laint  the  defendant  demurred,  and  the  court  below  gave 
judgment  for  the  plaintiffs. 

By  the  3d  section  of  the  Act  of  Congress  of  31st  Deceinl)er,  1  792,  it 
is  provided  that  every  ship  or  vessel,  except  as  thereafter  provided, 
shall  be  registered  by  the  collector  of  the  district,  in  which  shall  be 
comprehended  the  port  to  which  the  ship  or  vessel  shall  belong  at  the 
time  of  her  registry,  and  which  port  shall  be  deemed  to  be  that  at  or 
nearest  to  which  the  owner,  if  there  be  but  one,  or,  if  more  than  one, 
nearest  to  the  place  where  the  husband,  or  acting  and  managing  owner, 
usually  resides  ;  and  the  name  of  the  ship,  and  of  the  port  to  which 
she  shall  so  belong,  shall  be  painted  on  her  stern,  on  a  black  ground, 
in  white  letters  of  not  less  than  three  inches  in  length  ;  and  if  anv  ship 
or  vessel  of  the  United  States  shall  be  found  without  having  her  name, 
and  the  name  of  the  port  to  which  she  belongs,  painted  in  the  mann-^^r 
mentioned,  the  ownei-  or  owners  shall  forfeit  fifty  dollars. 

And  by  the  Act  of  29th  July,  1850  (9  Stats,  at  Large,  440),  it  is 
provided  that  no  bill  of  sale,  mortgage,  or  conveyance  of  any  ves.sel 
shall  be  valid  against  any  person  other  than  the  grantor,  etc.,  and  per- 
sons having  actual  notice,  unless  such  bill  of  sale,  mortgage,  or  convev- 
ance  be  recorded  in  the  office  of  the  collector  of  the  customs  where 
such  vessel  is  registered  or  enrolled. 

Tiiese  provisions,  and  otliers  tluit  might  be  referred  to,  very  clearlv 
indicate  that  the  domicile  of  a  vessel  that  requires  to  be  registered,  if 
we  may  so  speak,  or  home  [)ort,  is  the  port  at  which  she  is  registered, 
and  which  must  l)e  the  nearest  to  the  place  where  the  owner  or  owners 
reside.  In  this  case,  therefore,  the  home  port  of  the  vessels  of  the 
plaintiffs  was  the  port  of  New  York,  where  they  were  duly  i-egistered, 
and  where  all  the  individual  owners  are  resident,  and  where  is  also  the 
principal  place  of  business  of  the  company  ;  and  where,  it  is  admitted, 
the  capital  invested  is  subject  to  State,  coutity,  and  other  local  taxes. 

These  s-hips  are  engaged  in  the  transportation  of  passengers,  mer- 
chandise, etc.,  between  the  city  of  New  York  and  San  Francisco,  by 
the  way  of  Panama,  and  between  San  Francisco  and  difl'erent  ports  in 
the  territory  of  Oregon.  They  are  thus  engaged  in  the  business  and 
commerce  of  the  country,  upon  the  highway  of  nations,  touching  at 
such  ports  and  places  as  these  great  interests  demand,  and  winch  hold 
out  to  the  owners  sufficient  inducements  by  the  profits  realized  or  ex- 
pected to  lie  realized.  And  so  far  as  respects  the  i)orts  and  harbors 
w  ithin  the  United  States,  they  are  entere<l  and  cargoes  discharged  or 
iadcii  on  l)oar(l.  independently  of  any  control  over  them,  exce|)t  as  it 
respects  such  municipal  and  sanitary  regulations  of  the  local  authorities 
as  are  not  inconsistent  with  tiie  constitution  and  laws  of  the  <>;eneral 
government,  to  which  belongs  the  regulation  of  commerce  with  foreign 
r"<-ions  and  Ix'tween  the  States. 


222  HAYS   V.    PACIFIC   MAIL    STEAMSHIP   CO.  [CHAP.  II. 

Now,  it  is  quite  apparent  that  if  the  State  of  California  possessed^ 
the  authority  to  impose  the  tax  in  question,  any  other  State  in  the 
Union,  into  the  ports  of  which  the  vessels  entered  in  the  prosecution  of 
their  trade  and  business,  might  also  impose  a  like  tax.  It  may  be 
that  the  course  of  trade  or  other  circumstances  might  not  occasion  as 
great  a  delay  in  other  ports  on  the  Pacific  as  at  the  port  of  San  Francisco. 
But  this  is  a  matter  accidental,  depending  upon  the  amount  of  business 
to  be  transacted  at  the  particular  port,  the  nature  of  it,  necessary 
repairs,  etc.,  which  in  no  respect  can  affect  the  question  as  to  the  situs 
of  the  property,  in  view  of  the  right  of  taxation  by  the  State. 

Besides,  whether  the  vessel,  leaving  her  home  port  for  trade  and 
commerce,  visits,  in  the  course  of  her  voyage  or  business,  several  ports, 
or  confines  her  operations  in  the  carrying  trade  to  one,  are  questions 
that  will  depend  upon  the  profitable  returns  of  the  business,  and  will 
furnish  no  more  evidence  that  she  has  become  a  part  of  the  personal 
property  within  the  State,  and  liable  to  taxation  at  one  port  than  at  the 
others.  She  is  within  the  jurisdiction  of  all  or  any  one  of  them  tempo- 
rarily, and  for  a  purpose  wholly  excluding  the  idea  of  permanently  abid- 
ing in  the  State,  or  changing  her  home  port.  Our  merchant  vessels 
are  not  unfrequently  absent  for  years,  in  the  foreign  carrying  trade, 
seeking  cargo,  carrying  and  unlading  it  from  port  to  port,  during  all 
the  time  absent ;  but  they  neither  lose  their  national  character  nor  their 
home  port,  as  inscribed  upon  their  stern. 

The  distinction  between  a  vessel  in  her  home  port  and  when  lying^ 
at  a  foreign  one,  or  in  the  port  of  another  State,  is  familiar  in  the 
admiralty  law,  and  she  is  subjected,  in  many  cases,  to  the  application 
of  a  different  set  of  principles.     7  Pet.  324  ;  4  Wheat.  438. 

We  are  satisfied  that  the  State  of  California  had  no  jurisdiction  over 
these  vessels  for  the  purpose  of  taxation  ;  they  were  not,  properly, 
abiding  within  its  limits,  so  as  to  become  incorporated  with  the  other 
personal  property  of  the  State  ;  they  were  there  but  temporarily,  en- 
gaged in  lawful  trade  and  commerce,  with  their  situs  at  the  home  port, 
where  the  vessels  belonged,  and  where  the  owners  were  liable  to  be 
taxed  for  the  capital  invested,  and  where  the  taxes  had  been  paid. 

An  objection  is  taken  to  the  recovery  against  the  collector,  on  the 
ground,  mainly,  that  the  assessment  under  the  law  of  California,  by 
the  assessors,  was  a  judicial  act,  and  that  the  party  should  have  pur- 
sued his  remedy  to  set  it  aside  according  to  the  provisions  of  that  law. 

We  do  not  think  so.  The  assessment  was  not  a  judicial,  but  a 
ministerial  act,  and  as  the  assessors  exceeded  their  powers  in  making 
it,  tlie  oflficer  is  not  protected. 

The  payment  of  the  tax  was  not  voluntary,  but  compulsory,  to  pre- 
vent the  sale  of  one  of  the  ships. 

Our  conclusion  is,  that  the  judgment  of  the  court  below  is  right, 
and  should  be  aflSrmed.^ 

1  Arc.  Johnson  v.  Debary-Raya  Merchants'  Line,  37  Fla.  499,  19  So.  640;  Roberts 
V.  Charlevoix,    60  Mich.  197  ;    S.  v.   Haight,    30  N.  J.  L.  428.      So  generally  as  to. 


SECT.  II.]  HOYT   V.   COMMISSIONERS   OF   TAXES.  223 

HOYT  V.  COMMISSIONERS   OF  TAXES. 

Court  of  Appkals  of  New  Yokk.  1861. 
[Reported  23  New  Vork,  224.] 
CoMSTOCK,  C.  J.  The  legislature,  in  (lefining  property  which  is  liable 
to  taxation,  have  used  the  following  language:  "AH  lands  and  all 
personal  estate  within  this  State,  whether  owned  by  individuals  or 
corporations,  shall  be  liable  to  taxation  subject  to  the  exemptions  here- 
inafter specified."  (1  R.  S.,  387,  §  1.)  Tiie  title  of  the  act  in  which 
this  provision  is  contained,  is,  "  of  the  property  liai)le  to  taxation," 
and  it  is  in  this  title  that  we  ought  to  look  for  controlling  delinitions 
on  the  subject.  Other  enactments  relate  to  the  details  of  the  system 
of  taxation,  to  the  mode  of  imposing  and  collecting  the  public  burdens, 
and  not  to  the  property  or  subject  upon  which  it  is  imposed.  In  order, 
therefore,  to  determine\he  question  now  before  us,  the  primary  requisite 
is  to  interpret  justly  and  fairly  the  language  above  quoted. 

"  All  lands  and  all  personal  estate  within  this  State  shall  be  liable  to 
taxation."  If  w-e  are  willing  to  take  this  language,  without  attempt- 
ing to  obscure  it  by  introducing  a  legal  fiction  as  to  the  situs  of 
personal  estate,  its  meaning  would  seem  to  be  plain.  Lands  and 
personal  property  having  an  actual  situation  within  the  State  are  tax- 
able, and  by  a  necessary  implication  no  other  property  can  be  taxed. 
I  know  not  in  what  language  more  appropriate  or  exact  the  idea  could 
have  been  expressed.  Real  and  personal  estate  are  included  in  pre- 
cisely the  same  form  of  expression.  Both  are  mentioned  as  being 
within  the  State.  It  is  conceded  that  lands  lying  in  another  State 
or  country,  cannot  be  taxed  against  the  owner  resident  here,  and  no 
one  ever  supposed  the  contrary.  Yet  it  is  claimed  that  goods  and 
chattels  situated  in  Louisiana,  or  in  France,  can  be  so  taxed.  The 
leo-islature  I  suppose  could  make  this  distinction,  but  that  they  have 
not  made  it,  in  the  language  of  the  statute  is  perfectly  clear.  Nor  is 
the  reason  apparent  why  such  a  distinction  should  be  made.  Lands 
have  an  actual  situs,  which  of  course  is  immovable.  Chattels  also 
have  an  actual  situs,  although  they  can  be  moved  from  one  place  to 
anotner.  Both  are  equally  protected  by  the  laws  of  the  State  or  sov- 
ereignty in  which  they  are  situated,  and  both  are  chargeable  there  with 
pubUc  burdens,  according  to  all  just  principles  of  taxation.  A  purely 
poll  tax  has  no  respect  to  property.  We  have  no  such  tax.  With  us 
taxation  is  upon  property,  and  so  it  is  in  all  the  States  of  the  Union. 
So  also  in  general,  it  is  in  all  countries.  Tlie  logical  result  is,  that  tiie 
tax  is  incurred  within  the  jiu-isdiction  and  under  the  laws  of  the 
country  where  it  is  situated.     If  we  say  that  taxation  is  on  the  person 

property  merely  in  transitu.  Standard  Oil  Co.  v.  Badi.dor.  89  Ind.  1  ;  Conley  v.  Che. 
die,  7  Nev.  336  ;  Robinson  v.  Longley.  18  Nev.  71  ;  see  Currier  v.  Gordon,  21  Oh.  & 
605.  —  Kd 


224  HOYT    V.    COMMISSIONEES    OF    TAXES.  [CHAP.  II. 

in  respect  to  the  property,  we  are  still  without  a  reason  for  assessing 
the  owner  resident  here,  in  respect  to  one  part  of  his  estate  situated 
elsewhere,  and  not  in  respect  to  another  part.  Both,  I  repeat,  are  the 
subjects  of  taxation  in  the  foreign  jurisdiction.  If  then  the  owner 
ought  to  be  subjected  to  a  double  burden  as  to  one,  why  not  as  to  the 
other  also  ? 

I  find  then  no  room  for  interpretation,  if  we  take  the  words  of  the 
statute  in  their  plain  ordinary  sense.  The  legislative  definition  of 
taxable  propert\'  refers  in  that  sense  to  the  actual  situs  of  personal 
not  less  than  real  estate.  If  the  intention  had  been  different,  it  cannot 
he  doubted  that  different  language  would  have  been  used.  It  would 
have  been  so  easy  and  so  natural  to  have  declared  that  all  lands  within 
this  State,  and  all  personal  property  wherever  situated,  owned  by 
residents  of  this  State,  shall  be  liable  to  taxation,  that  we  should  have 
expected  just  such  a  declaration,  if  such  had  been  the  meaning  of  the 
law-making  power.  To  me,  it  is  evident  that  the  legislature  were  not 
enunciating  a  legal  fiction  which,  as  we  shall  presently  see,  expresses  a 
rule  of  law  in  some  circumstances  and  relations,  but  which  in  others  is 
not  the  law.  They  were  speaking  in  plain  words,  and  to  the  plain 
understanding  of  men  in  general.  When  they  said  all  real  and  all 
personal  estate  within  this  State,  I  see  no  room  for  a  serious  doubt 
that  they  intended  property  actually  within  the  State  wherever  the 
owner  might  reside. 

It  is  said,  however,  that  personal  estate  by  a  fiction  of  law  has  no 
situs  awa}'  from  the  person  or  residence  of  the  owner,  and  is  always 
deemed  to  be  present  with  him  at  the  place  of  his  domicile.  The  right 
to  tax  the  relator's  property  situated  in  New  Orleans  and  New  Jerse}', 
rests  upon  the  universal  application  of  this  legal  fiction  ;  and  it  is 
accordingly  insisted  upon  as  an  absolute  rule  or  principle  of  law  which, 
to  all  intents  and  purposes,  transfers  the  propert}'  from  the  foreign  to 
the  domestic  jurisdiction,  and  thus  subjects  it  to  taxation  under  our 
laws.  Let  us  observe  to  what  results  such  a  theory-  will  lead  us.  The 
necessary  consequence  is,  that  goods  and  chattels  actuall}'  within  this 
State  are  not  here  in  any  legal  sense,  or  for  any  legal  purpose,  if  the 
owner  resides  abroad.  The}'  cannot  be  taxed  here,  because  they  are 
with  the  owner  who  is  a  citizen  or  subject  of  some  foreign  State.  On 
the  same  ground,  if  we  are  to  have  harmonious  rules  of  law,  we  ought 
to  relinquish  the  administration  of  the  efll'ects  of  a  person  resident  and 
dying  abroad,  although  the  claims  of  domestic  creditors  may  require 
such  administration.  So,  in  the  case  of  the  bankruptcy  of  such  a 
person,  we  should  at  once  send  abroad  his  effects,  and  cannot  consist- 
ently retain  them  to  satisfy  the  claims  of  our  own  citizens.  Again,  we 
ought  not  to  have  laws  for  attaching  the  personal  estate  of  non-residents, 
because  such  laws  necessarily  assume  that  it  has  a  situs  entirely  distinct 
from  the  owner's  domicile.  Yet  we  do  in  certain  cases  administer  upon 
goods  and  chattels  of  a  foreign  decedent ;  we  refuse  to  give  up  the 
effects  of  a  bankrupt  until  creditors  here  are  paid  ;  and  we  have  laws 


SECT.  II.]  HOYT    r.    COMMISSIONEES    OF    TAXES. 


225 


of  attachment  against  the  effects  of  non-resident  debtors.  These,  and 
other  illustrations  which  might  be  mentioned,  demonstrate  that  llie 
liction  or  maxim  iuobilia  personam  seqitKntur  is  by  no  means  of 
universal  application.  Like  other  fictions,  it  has  its  special  uses.  It' 
mav  be  resorted  to  when  convenience  and  justice  so  require.  In  oUier 
circumstances  the  truth  and  not  the  fiction  affords,  as  it  plainly  ought 
to  afford,  the  rule  of  action.  The  proper  use  of  legal  fictions  is  to 
prevent  injustice,  according  to  the  maxim,  in  Jictione  juris  semper 
<.p mitas  existed.  "  No  fiction."  says  Blackstone,  "  shall  extend  to 
work  an  injury  ;  its  proper  operation  being  to  prevent  a  mischief  or 
remedy  an  inconvenience,  which  might  result  from  the  general  rule  of 
law."  So  Judge  Story,  referring  to  the  situs  of  goods  and  chattels. 
observes:  ''The  general  doctrine  is  not  controverted,  that  although 
movables  are  for  many  purposes  to  be  deemed  to  have  no  si7?<s,  except 
that  of  the  domicile  of  the  owner,  yet  this  being  but  a  legal  fiction  it 
yields  whenever  it  is  necessary,  for  the  purpose  of  justice,  that  the 
actual  situs  of  the  thing  should  be  examined."  He  adds  quite  perti- 
nently, I  think,  to  the  present  question,  "  A  nation  within  whose  territory 
any  personal  property  is  actually  situated,  lias  an  entire  dominion  over 
it  while  therein,  in  point  of  sovereignty  and  jurisdiction,  as  it  has  over 
immovable  property  situated  there."  (Confl.  of  Laws,  §  550.)  I  can 
think  of  no  more  just  and  appropriate  exercise  of  the  sovereignty  of  a 
State  or  nation  over  property,  situated  within  it  and  protected  by  its 
laws,  than  to  compel  it  to  contribute  toward  the  maintenance  of  govern- 
ment and  law. 

Accordingly  there  seems  to  be  no  place  for  the  fiction  of  which  we 
are  speaking,  in  a  well-adjusted  system  of  taxation.  In  such  a  system 
a  fundamental  requisite  is  that  it  be  harmonious.  But  harmony  does 
not  exist  unless  the  taxing  power  is  exerted  with  reference  exclusively 
either  to  the  situs  of  the  property,  or  to  the  residence  of  the  owner. 
Both  rules  cannot  obtain  unless  we  impute  inconsistency  to  the  law, 
and  oppression  to  the  taxing  power.  Whichever  of  these  rules  is  the 
true  one,  whichever  we  find  to  be  founded  in  justice  and  in  the  reason 
of  the  thing,  it  necessarily  excludes  the  other  :  because  we  ought  to 
suppose,  indeed  we  are  bound  to  assume,  that  other  States  and  Govern- 
ments have  adopted  the  same  rule.  If  then  proceeding  on  the  true 
principles  of  taxation,  we  subject  to  its  burdens  all  goods  and  chattels 
actually  within  our  jurisdiction,  without  regard  to  the  owner's  domicile, 
it  must  be  understood  that  the  same  rule  prevails  everywhere.  If  we 
also  proceed  on  the  opposite  rule,  and  impose  the  tax  on  account  of  the 
domicile,  without  regard  to  the  actual  situs,  while  the  same  property  is 
taxed  in  another  sovereignty  by  reason  of  its  situs  there,  we  necessarily 
subject  the  citizen  to  a  doul)lc  burden  of  taxation.  For  this  no  sound 
reason  can  be  given.  To  put  a  strong  case.  The  owner  of  a  southern 
plantation  witli  his  thousand  slaves  ui)on  it,  may  perfer  to  reside  and 
spend  his  income  in  Now  York.  Our  laws  protect  him  in  his  person  as 
a  citizen  of  the  State,  and   f-.r  \\\\<  tlie  Slate  receives  a  suftic-icut   w\\- 


226  HOYT    V.    COMMISSIONERS    OF    TAXES.  [ciIAP.  II. 

sideration  without  taxing  tlie  capital  which  it  does  not  protect.  Under 
our  laws  can  we  tax  the  wealth  thus  invested  in  slave  property  ?  They 
ignore,  on  the  contrary,  the  very  existence  of  such  property,  and 
therefore  there  is  no  room  for  the  fiction  according  to  which,  and  only 
according  to  which,  the  situs  is  supposed  to  be  here.  But  if  we  could 
make  room  for  that  fiction,  still  it  remains  to  be  sliown  that  some  rule 
of  reason  or  principle  of  equity  can  be  urged  in  favor  of  such  taxation. 
This  cannot  be  shown,  and  the  attempt  has  not  been  made. 

We  may  reverse  the  illustration.     A  citizen  and  resident  of  Massa- 
chusetts may  own  a  farm  in  one  of  the  counties  of  this  State,  and  large 
wealth  belono-ing  to  him  may  be  invested  in  cattle,  in  sheep  or  horses 
which  graze  the  fields,  and  are  visible  to  the  eyes  of  the  taxing  power. 
Now  these  goods  and  chattels  have  an  actual  situs,  as  distinctly  so  as 
the  farm  itself.     Putting  the  inquiry  then  with  reference  to  both,  are 
they  "  real  estate  and  personal  estate  icithin  this  State"  so  as  to  be 
subject  to  taxation   under  that  definition  ?     It  seems  to  me   but  one 
answer  can  be  given  this  question,  and  that  answer  must  be  according 
to  the  actual  truth  of  the  case.     If  we  take  the  fiction  instead  of  the 
truth,  then  the  situs  of  these  chattels  is  in  Massachusetts,  and  they  are 
not  within  this  State.     The  statute  means  one  thing  or  the  other.     It 
cannot  have  double  and  inconsistent  interpretations.     And  as  this  is 
impossible  so  we  cannot,  under  and  according  to  the  statute,  tax  the 
citizen  of  Massachusetts  in  respect  to    his  chattels  here,  and  at  the 
same  time  tax    the  citizen  of  New  York   in  respect  to  his  chattels 
having  an   actual   situs  there.     In   both  cases  the  property  must  be 
"  within  this  State,"  or  there  is  no  right  to  tax  it  at  all.     It  cannot  be 
true  in  fact,  if  a  Massachusetts  man  owns  two  spans  of  horses,  one  of 
which  draws  his  carriage  at  home  and  the  other  is  kept  on  his  farm 
here,  that  both  are  within  the  State.     It  cannot  be  true  by  any  legal 
intendment,  because  the  same  intendment  which  locates  one  of  them 
here,  must  locate  the  other  abroad  and  beyond  the  taxing  power.     It 
seems  to  follow  then   inevitably  that  before  we  can  uphold  the  tax 
which  has  been  imposed  upon  the  relator's  property  situated  in  New 
Orleans  and  New  Jersey,  we  must  first  determine,  that  if  he  resided 
there,  and  the  same  goods  and  chattels  were  located  here,  they  could 
not  be  taxed  as  being  within  the  State.     Such  a  determination  I  am 
satisfied  would  contravene  the  plain  letter  of  the  statute  as  well  as  all 
sound  principles  underlying  the  subject.^ 

1  The  remainder  of  the  opinion  is  omitted. 

Ace.  Dunleith  v.  Rogers,  53  111.  45  ;  Leonard  v.  New  Bedford,  16  Gray,  292;  S.  v. 
Ross,  23  N.  J.  L.  517  ;   Hardesty  v.  Fleming,  57  Tex.  395. 

"  We  have  no  difficulty  in  disposing  of  the  last  condition  of  the  question,  namely : 
the  fact,  if  it  be  a  fact,  that  the  property  was  owned  by  persons  residing  in  another 
State  ;  for,  if  not  exempt  from  taxation  for  other  reasons,  it  cannot  be  exempt  by 
reason  of  being  owned  by  non-residents  of  the  State.  We  take  it  to  be  a  point  settled 
beyond  all  contradiction  or  question,  that  a  State  has  jurisdiction  of  all  persons  and 
things  within  its  territory  which  do  not  belong  to  sonje  other  jurisdiction,  such  as  the 
representatives  of  foreign  governments,  with  their  houses  and  effects,  and  property 


SECT.  II.]  McKEEX    V.    tm'NTY   OF   NORTHAMPTON'.  221 


McKEEN  V.   COUNTY  OF  NORTHAMPTON. 

Supreme  Court  of  Pennsylvania.     1865. 

[Reported  49  Pennsylvania,  519.] 

Agnew,  J.  James  McKeeii  is  the  owner  of  four  hundred  and  sev- 
enty-two shares  of  the  capital  stock  of  a  manufacturing  compan}', 
incorporated  under  tlie  laws  of  New  Jersey,  doing  business  and  hold- 
ing its  property  in  Warren  county  in  that  State.  McKeen  himself  is 
a  resident  of  P^aston,  Pennsylvania,  and  the  question  is,  whether  his 
stock  is  taxable  here  for  State  and  count}'  purposes. 

The  taxing  power  rests  upon  the  reciprocal  duties  of  protection  and 
support  betvi'een  the  State  and  the  citizen,  and  the  exclusive  sover- 
eignty and  jurisdiction  of  the  State  over  the  persons  and  property 
witliin  its  territor}-.  In  McCuUough  v.  The  State  of  Maryland,  4 
Wlieat.  487,  Marshall,  C.  J.,  remarks  of  the  taxing  power:  "It  is 
obvious  that  it  is  an  incident  of  sovereignty,  and  is  co-extensive 
with  that  to  which  it  is  incident.  All  subjects  over  whicli  the 
sovereign  power  of  a  State  extends  are  objects  of  taxation  ;  but  those 
over  which  it  does  not  extend  are,  upon  the  soundest  principles,  exempt 
from  taxation."  Story,  in  his  Conflict  of  Laws,  §  19,  says:  "The 
sovereign  has  power  and  authority  over  his  subjects,  and  over  the 
propert}'  which  they  possess  within  his  dominions."  See  Id.  §§  18 
and  20. 

The  defendant  below  being  a  citizen  of  this  State,  it  is  clear  he  is 
subject  personalh'  to  its  power  to  tax,  and  that  all  his  propert}'  accom- 
panying his  person,  or  falling  legitimately  within  the  territorial  juris- 
diction of  the  State,  is  equallv  within  this  authority.  The  interest 
which  an  owner  of  shares  has  in  the  stock  of  a  corporation  is  personal. 
Whithersoever  he  goes  it  accompanies  him,  and  when  he  dies  his  domi- 
cile governs  its  succession.  It  goes  to  his  executor  or  administrator, 
and  not  to  tlie  heirs,  and  is  carried  into  the  inventory  of  his  personal 
effects.  When  it  is  argued,  therefore,  that  the  foundry,  machine-shop, 
and  other  estate  of  the  corporation,  being  within  the  State  of  New 
Jerse}',  are  subject  wholly  to  the  same  exclusive  State  jurisdiction  there 
which  we  claim  for  this  State  over  property  within  its  territory,  another 
ownership  is  stated  and  a  new  issue  introduced.  But  to  that  propcrtv 
the  defendant  below  has  no  title  ;  his  title  being  in  the  shares  he  holds, 
and  not  in  the  property  of  tiie  corporation.  No  execution  against  him 
there  would  sell  a  spark  of  right  to  it,  nor  would  his  heirs  at  law  suc- 

belonging  to  or  in  the  n.se  of  the  Government  of  the  United  States.  If  tlie  owner  of 
liersonal  property  within  a  State  resides  in  another  State  which  taxes  him  lor  tliat 
jiroperty  as  part  of  his  general  estate  attac'lied  to  his  j)erson,  this  action  of  the  Litter 
State  does  not  in  the  least  affect  the  right  of  the  State  in  which  the  )iroperty  is 
situated  to  tax  it  also.  It  is  hardly  necessary  to  cite  authorities  on  a  point  so  elemen- 
tary."—Bfiadley,  J.,  in  Coe  v.  Krro),  116  V.  S.  517  (1886).  Aca  Winkley  v.  New- 
ton.  67  X.  11.  80;  36  All.  610.  —  Ki.. 


228  McKEEN    V.   COUNTY    OF   NORTHAMPTON.  [ClIAP.  TI. 

ceed  to  an}'  estate  in  it.  Unquestionably  it  may  be  taxed  as  the  prop- 
erty of  the  corporation  in  New  Jersey  ;  but  the  ownership  there  is  that 
of  the  corporation,  the  legal  entity,  and  not  of  the  natural  persons  who 
own  the  shares  of  its  stock. 

The  stock  of  individuals  may  be  controlled,  to  a  certain  extent,  in 
New  Jersey  to  make  it  liable  to  the  claims  of  their  domestic  creditors, 
or  legatees  and  next  of  kin.  Even  ancillary  administration  may  be 
granted  there  to  preserve  the  estate  for  resident  claimants.  But  even 
then  the  residue  of  McKeen's  stock  would  be  remitted  to  the  executors 
or  administrators  of  the  domicile  in  Pennsylvania,  and  the  right  of 
succession  would  be  governed  by  our  laws  ;  thus  proving  that  though 
local  authority  may  attach  to  the  stock  for  special  purposes,  its  owner- 
ship has  its  legal  situs  at  the  domicile  of  the  owner.  There  is  abun- 
dant authority  for  this :  Mothland  v.  Wireman,  administrator  of 
Thornburg,  3  Penn,  185;  Miller's  Estate,  3  Rawle,  312;  Stokely's  Es- 
tate, 7  Harris,  476  ;  Dent's  Appeal,  10  Id.  514. 

Another  feature  is  noticeable.  In  the  exercise  of  the  authority  to 
tax,  the  proceeding  is  personal  only.  Though  different  kinds  of  prop- 
erty are  specified  as  the  subjects  of  taxation,  it  is  not  as  a  proceeding 
in  rem,  but  only  as  aflbrding  the  means  and  measure  of  taxation.  The 
tax  is  assessed  personally,  and  the  means  of  enforcement  is  a  warrant 
against  the  person  of  the  owner,  and  any  property  he  has  whether  taxed 
or  not:  Act  15th  April,  1834,  §§  20,  21  ;  Purd.  1861,  pp.  938-939. 

We  have  authorities  directly  upon  this  question  deciding  the  prin- 
ciple, though  upon  a  different  species  of  tax  —  the  collateral  inheritance 
tax  :  I?i  re  Short's  Estate,  11  Harris,  63.  The  decedent,  a  resident  of 
Philadelphia,  owned  half  a  million  of  dollars  in  stocks  and  corporations 
of  other  States,  and  bonds  of  the  State  of  Kentucky,  and  a  bank  de- 
posit in  New  York  ;  all  were  held  to  be  subject  to  the  collateral  inher- 
itance tax  here.  Gibson,  C.  J.,  opens  his  opinion  by  stating:  "  That 
Mr.  Short's  property  out  of  the  State  subjected  him  to  personal  liability 
for  taxes  assessed  on  it  here  in  his  lifetime,  is  not  to  be  doubted.  The 
general  rule  is,  that  the  situs  of  personal  property  follows  the  domicile 
of  the  owner  of  it,  insomuch  that  even  a  creditor  cannot  reach  it  in  a 
foreign  country,  except  by  attachment  or  some  other  process  provided 
by  the  local  law  ;  certainly  not  by  a  personal  action,  without  appear- 
ance or  something  equivalent  to  it."  To  the  same  effect  is  the  case  of 
Hood's  Estate,  9  Harris,  106  ;  the  difference  of  domicile  merely  lead- 
ing to  an  opposite  result. 

The  court  below  was  right  in  entering  judgment  for  the  whole  amount 
of  the  taxes,  State  and  county.  The  question  of  liability  for  coimty 
taxes  is  disposed  of  in  the  opinion  just  read  in  the  case  of  Whitesell  v. 
Northampton  County.  Judgment  affirmed.'^ 

1  Ace.  Seward  v.  Rising  Sun,  79  Ind.  351  ;  Dwight  v.  Boston,  12  All.  316  ;  Hall 
V.  Fayetteville,  115  N.  C.  281,  20  S.  E.  373  ;  Bradley  v.  Bander,  36  Oh.  S.  28  ; 
Djer'v.  Osborn,  11  R.  I.  321. 

"  In  the  absence  of  constitutional  restrictions,  the  citizen  may  be  taxed  in  the  dis- 


■SECT.  II.]  STATC    TAX    OS    FOKElGN-llELD    BONDS.  229 


STATE   TAX  ON   FOREIGN-HELD   BONDS. 

Supreme  Court  of  the  United  States.     1873. 

[ruporlcd  15  Wallace,  300.] 

Field,  J.^  The  question  presented  in  this  case  for  our  determination 
is  whether  the  eleventh  section  of  the  Act  of  Pennsylvania  of  May,  1868, 
so  far  as  it  applies  to  the  interest  on  bonds  of  the  railroad  company, 
made  and  payable  out  of  the  State,  issued  to  and  held  by  non-residents 
of  the  State,  citizens  of  other  States,  is  a  valid  and  constitutional  exer- 
cise of  the  taxing  power  of  the  State,  or  whetlier  it  is  an  interference, 
under  the  name  of  a  tax,  with  the  obligation  of  the  contracts  between 
the  non-resident  bondholders  and  the  corporation.  If  it  be  the  former, 
this  court  cannot  arrest  the  judgment  of  the  State  court ;  if  it  be  the 
latter,  the  alleged  tax  is  illegal,  and  its  enforcement  can  be  restrained. 

The  case  before  us  is  similar  in  its  essential  particulars  to  that  of  The 
Railroad  Company  v.  Jackson,  reported  in  7  Wallace.  There,  as  here, 
the  company  was  incorporated  by  the  legislatures  of  two  States,  Penn- 
sylvania and  Maryland,  under  the  same  name,  and  its  road  extended  in 
a  continuous  line  from  Baltimore  in  one  State  to  Sunbury  in  the  other. 
And  the  company  had  issued  bonds  for  a  large  amount,  drawing  inter- 
est, and  executed  a  mortgage  for  their  security  upon  its  entire  road,  its 
franchises  and  fixtures,  including  the  portion  lying  in  both  States. 
Coupons  for  the  different  instalments  of  interest  were  attached  to  each 
bond.  There  was  no  apportionment  of  the  bonds  to  any  part  of  the 
road  lying  in  either  State.  The  whole  road  was  bound  for  each  bond. 
The  law  of  Pennsylvania,  as  it  then  existed,  imposed  a  tax  on  money 
owing  by  solvent  debtors  of  three  mills  on  the  dollar  of  the  principal, 
payable  out  of  the  interest.  An  alien  resident  in  Ireland  was  the  holder 
of  some  of  the  bonds  of  the  railroad  company,  and  when  he  presented 
his  coupons  for  the  interest  due  thereon,  the  company  claimed  the  right 
to  deduct  the  tax  imposed  by  the  law  of  Pennsylvania,  and  also  an  al- 
leged tax  to  the  United  States.  The  non-resident  refused  to  accept  the 
interest  with  these  deductions,  and  brought  suit  for  the  whole  amount 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  IMarylaiid. 
That  court,  the  chief  justice  presiding,  instructed  the  jury  that  if  the 

cretion  of  the  legislature,  either  personally,  by  way  of  ]ioll-tax,  or  uiioii  tlie  vahie  of 
his  property,  wherever  situate  or  however  elsewhere  taxed,  to  such  extent  as  the  ])u1)Hc 
exigencies  may  require.  .  .  .  The  very  Tiature  of  choses  in  action  is  that  they  have  no 
locality,  but  follow  the  person  of  the  owner.  As  they  sometimes  virtually  represent 
property  that  is  situated  elsewhere,  and  it  may  be  taxed  elsewliere,  there  is  in  some  cases 
a  double  taxation  ;  but  this  results  from  our  peculiar  situation,  and  although  undoubt- 
edly to  be  avoided,  and  not  to  be  assumed  as  intended  without  plain  enactments  ad- 
mitting of  no  other  reasonable  interpretation,  yet  so  far  as  it  is  produced  by  that 
conflict  of  laws  which  arises  from  a  variety  of  sovereignties  .so  intimately  connected  as 
ours,  it  frequently  cannot  be  avoided,  and  at  all  events  has  not  been  attempted  to  be 
prevented,  by  either  the  national  or  the  State  constitutions,"  Elmer,  J.,  in  Statu  v. 
Bentley,  23  iST.  J.  L.  532  (1852).  —  Kd. 
*  The  opinion  only  is  given.  —  Ed. 


230  STATE    TAX    ON    FOREIGN-HELD    BONDS.  [CHAP.  II. 

plaintiff,  when  he  purchased  the  bonds,  was  a  British  subject,  resident 
in  Ireland,  and  still  resided  there,  he  was  entitled  to  recover  the  amount 
of  the  coupons  without  deduction.  The  verdict  and  judgment  were  in 
accordance  with  this  instruction,  and  the  case  was  brought  here  for 
review. 

This  court  held  that  the  tax  under  the  law  of  Pennsylvania  could  not 
be  sustained,  as  to  permit  its  deduction  from  the  coupons  held  by  the 
plaintiff  would  be  giving  effect  to  the  acts  of  her  legislature  upon  prop- 
erty and  effects  lying  beyond  her  jurisdiction.  The  reasoning  by  which 
the  learned  justice,  who  delivered  the  opinion  of  the  court,  reached  this 
conclusion,  maj'  be  open,  perhaps,  to  some  criticism.  It  is  not  per- 
ceived how  the  fact  that  the  mortgage  given  for  the  security'  of  the  bonds 
in  that  case  covered  that  portion  of  the  road  which  extended  into  Mary- 
land could  affect  the  liability  of  the  bonds  to  taxation.  If  the  entire 
road  upon  which  the  mortgage  was  given  had  been  in  another  State,  and 
the  bonds  had  been  held  by  a  resident  of  Pennsylvania,  they  would  have 
been  taxable  under  her  laws  in  that  State.  It  was  the  fact  that  the  bonds 
were  held  by  a  non-resident  which  justified  the  language  used,  that  to 
permit  a  deduction  of  the  tax  from  the  interest  would  be  giving  effect 
to  the  laws  of  Pennsylvania  upon  property  bejond  her  jurisdiction,  and 
not  the  fact  assigned  by  the  learned  justice.  The  decision  is,  neverthe- 
less, authorit}-  for  the  doctrine  that  property  lying  be3'ond  the  jurisdic- 
tion of  the  State  is  not  a  subject  upon  which  her  taxing  power  can  be 
legitimatel}'  exercised.  Indeed,  it  would  seem  that  no  adjudication 
should  be  necessarj'  to  establish  so  obvious  a  proposition. 

The  power  of  taxation,  however  vast  in  its  character  and  searching  in 
its  extent,  is  necessaril}-  limited  to  subjects  within  the  jurisdiction  of  the 
State.  These  subjects  are  persons,  property,  and  business.  Whatever 
form  taxation  may  assume,  whether  as  duties,  imposts,  excises,  or  li- 
censes, it  must  relate  to  one  of  these  subjects.  It  is  not  possible  to 
conceive  of  any  other,  though  as  applied  to  them,  the  taxation  may  be 
exercised  in  a  great  variety  of  ways.  It  may  touch  propertv  in  every 
shape,  in  its  natural  condition,  in  its  manufactured  form,  and  in  its  va- 
rious transmutations.  And  the  amount  of  the  taxation  may  be  deter- 
mined bj-  the  value  of  the  property,  or  its  use,  or  its  capacity,  or  its 
productiveness.  It  may  touch  business  in  the  almost  infinite  forms  in 
which  it  is  conducted,  in  professions,  in  commerce,  in  manufactures, 
and  in  transportation.  Unless  restrained  by  provisions  of  the  Federal 
Constitution,  the  power  of  the  State  as  to  the  mode,  form,  and  extent 
of  taxation  is  unlimited,  where  the  subjects  to  wliicli  it  applies  are  within 
her  jurisdiction. 

Corporations  may  be  taxed,  like  natural  persons,  upon  their  property 
and  business.  But  debts  owing  by  cor|)orations,  like  debts  owing  by 
individuals,  are  not  property'  of  the  debtors,  in  anj'  sense  ;  they  are 
obligations  of  the  debtors,  and  only  possess  value  in  the  hands  of  the 
creditors.  With  them  the}'  are  propert}',  and  in  their  hands  they  may 
be  taxed.     To  call  debts  property  of  the  debtors  is  simply  to  misuse 


SECT.  U.]  STATE    TAX    OX    FOREIGX-IIELD    BONDS. 


231 


terms.  All  the  property  there  can  be  in  the  nature  of  things  in  debts 
of  corporations,  belongs  to  the  creditors,  to  whom  they  are  payable,  and 
follows  their  domicile,  wherever  that  may  be.  Their  debts  can  have  no 
ioe-iUty  separate  from  tlie  parties  to  whom  they  are  due.  This  principle 
might  be  stated  in  many  ditferent  ways,  and  supported  by  citations  from 
numerous  adjudications,  but  no  number  of  authorities,  and  no  forms  of 
expression  could  add  anything  to  its  obvious  truth,  whicli  is  recognized 
upon  its  simple  statement. 

The  bonds  issued  by  the  railroad  company  in  this  case  are  undoubt- 
edlv  property,  but  property  in  the  hands  of  the  holders,  not  proi)erty  of 
the"  obligors.     So  far  as  they  are  held  by  non-residents  of  the  State, 
they  are  property  beyond  tlie  jurisdiction  of  the  State.     The  law  which 
requires  the  treasurer  of  the  c(jmi)auy  to  retain  five  per  cent  of  the  inter- 
est due  to  the  non-resident  boudholtler  is  not,  therefore,  a  legitimate 
exercise  of  the  taxing  power.      It  is  a  law  which  interferes  between  tlie 
company  and  the  bondiiolder,  and  under  Uie  [)reteuce  of  levying  a  tax 
commands  the  company  to  withhold  a  portion  of  the  stipulated  interest 
and  pav  it  over  to  the  Stale.     It  is  a  law  which  thus  impairs  the  obli- 
gation of  the  contract  between  the  parties.    The  obligation  of  a  contract 
depends  upon  its  terms  and  the  means  which  the  law  in  existence  at  the 
time  affords  for  its  enforcement.    A  law  which  alters  the  terms  of  a  con- 
tract by  imposing  new  conditions,  or  dispensing  with  those  expressed, 
is  a  law  which  impairs  its  obligation,  for,  as  stated  on  another  occasion, 
such  a  law  relieves  the  parties  from  the  moral  duty  of  performing  the 
original  stipulations  of  the  contract,  and  it  prevents  their  legal  enforce- 
ment.    The  Act  of  Pennsylvania  of  May  1,  1868,  falls  within  this  de- 
scription.    It  directs  the  treasurer  of  every  incorporated  company  to 
retain  from   the  interest  stipulated  to  its  bondholders  five    i)er  cent 
upon  every  dollar,  and  pay  it  uito  the  treasury  of  the  Commonwealth. 
It  thus  sanctions  and  commands  a  disregard  of  the  express  provisions 
of  the  contracts  between  the  company  and  its  creditors.     It  is  only 
one  of  many  cases  where,  under  the  name  of  taxation,  an  oppressive 
exaction  is   made  without  constitutional  warrant,  amounting  to  little 
less  than  an  arbitrary  seizure  of  private  property.     It  is,  in  fact,  a 
forced  contribution  levied  upon  property  held  in  other  States,  where  it 
is  subjected,  or  may  be  subjected,  to  taxation  upon  an  estimate  of  its 
full  value. 

The  case  of  Maltby  v.  The  Reading  and  Columbia  Railroad  Com- 
pany, decided  by  the  Supreme  Court  of  Pennsylvania  in  18G6,  was 
referred  to  by  the  Common  Pleas  in  support  of  its  ruling,  and  is 
relied  upon  by  counsel  in  support  of  the  tax  in  question.  The  decision 
in  that  case  does  go  to  the  fidl  extent  claimed,  and  holds  that  bonds  ot 
corporations  h(!ld  by  non-residents  are  taxable  in  that  State.  But  it  is 
evident  from  a  perusal  of  the  opinion  of  the  court  that  the  decision 
proceeded  upon  the  idea  that  the  bond  of  the  non-resident  was  itscll 
property  in  the  State  because  secured  by  a  mortgage  on  property  there. 
'•  It  is   undonl)tedlv   true,"  said  the  court,  "that  the  Legislature  ol 


232  STATE    TAX    ON     FOKEIGK-HELD    BOXIJri.  [OHAP.  II. 

Pennsylvania  cannot  impose  a  personal  tax  upon  tlie  citizen  of  anothei 
State,  but  the  coustaut  [n-actice  is  to  tax  proi)erty  witliin  our  jurisdic- 
tion which  belongs  to  non-residents."     And  again:    "'There  must  be 
jurisdiction  over  either  the  pro[)erty  or  the   i)ersou  of  the  owner,  else 
the  power  cannot  be  exercised  ;   but  when   the   property  is  within  our 
jurisdiction,  and  enjoys  the  protection   of  oin-   State   government,  it  is 
justly  taxable,  and  it  is  of  no  moment  that  the  owner,  who  is  required 
to  pay  the  tax,  resides  elsewhere."     There  is  no  doubt  of  the  correct- 
ness of  these  views.     But  the  court  then   proceeds  to  state   that  the 
principle  of  taxation  as  the  correlative  of  pri^tection  is  as  applicable 
to  a  non-resident  as  to  a  resident ;  that  the  loan  to  the  non-resident  is 
made  valuable  by  the  franchises  which  the  comi)any  derived  from  the 
Commonwealth,  and  as  an  investment  rests  upon  State  authority,  and, 
therefore,  ought  to  contribute  to  the  support  of  the  State  government. 
It  also  adds  that,  though  the  loan  is  for  some  purposes  subject  to  the 
law  of  the  domicile  of  the  holder,  ''  yet,  in  a  very  high  sense,"  it  is 
also  property  in  Pennsylvania,  observing,  in  support  of  this  position, 
that  the  holder  of  a  bond  of  the  company  could  not  enforce  it  except 
in  that  State,  and  that  the  mortgage  given   for  its   security  was  upon 
property  and  franchises  within  her  jurisdiction.     The  amount  of  all 
which  is  this :  that  the  State  which  creates  and  protects  a  corporation 
ought  to  have  the  right  to  tax  the  loans  negotiated  by  it,  though  taken 
and  held  by  non-residents,  a  proposition  which  it  is  unnecessaiy  to  con- 
trovert.    The  legality  of  a  tax  of  that  kind  would  not  be  questioned  if 
in  the  charter  of  the  company  the  imposition  of  the  tax  were  author- 
ized, and  in  the  bonds  of  the  company,  or  its  certificates  of  loan,  the 
liability  of  the   loan  to  taxation  were   stated.     The  tax  in   that  case 
would  be  in  the  nature  of  a  license  tax  for  negotiating  tlie  loan,  for  in 
whatever  manner  made  payable  it  would  ultimately  fall  on  the  company 
as  a  condition  of  effecting  the  loan,  and  parties  contracting  with  the 
companv  would  provide   for  it  by  proper  stipulations.     But  there  is 
nothing  in  the  observations  of  the  court,  nor  is  there  anything  in  the 
opinion,  which  shows  that  the  bond  of  the   non-resident  was   property 
in  the  State,  or  that  the  non-resident  had   any  property  in  the  State 
which  was  subject  to  taxation  within  the  principles  laid  down  by  the 
court  itself,  which  we  have  cited. 

The  property  mortgaged  belonged  entirely  to  the  company,  and  so 
far  as  it  was  situated  in  Pennsylvania  was  taxable  there.  If  taxation 
is  the  correlative  of  protection,  the  taxes  which  it  there  paid  were  the 
correlative  for  the  protection  which  it  there  received.  And  neither  the 
taxation  of  the  property,  nor  its  protection,  was  augmented  or  dimin- 
ished by  the  fact  that  the  corporation  was  in  debt  or  free  from  debt, 
The  property  in  no  sense  belonged  to  the  non-resident  bondholder  oi 
to  the  mortgagee  of  the  company.  The  mortgage  transferred  no  title  ; 
it  created  only  a  lien  upon  the  property.  Though  in  form  a  convey- 
ance, it  was  both  at  law  and  in  equity  a  mere  security  for  the  debt. 
That  such  is  the  nature  of  a  mortgage  in   Pennsylvania  has  been  fre- 


SECT.  II.]  STATE    TAX    ON    FOUEIGN-HELD    BONDS. 


23; 


quently  ruled  by  her  highest  court.  In  Witmer's  Appeal,  45  Penn.  S. 
463,  the  court  said  :  '*  The  niorta;agee  has  no  estate  in  the  land,  any 
more  than  the  judgment  creditor.  Both  have  liens  upon  it,  and  no 
more  than  liens."'  And  in  that  State  all  possible  interests  in  lands, 
whether  vested  or  contingent,  are  subject  to  levy  and  sale  on  execution, 
yet  it  has  been  held,  on  the  ground  that  a  mortgagee  has  no  estate  in  the 
hinds,  that  the  mortgaged  premises  cannot  be  taken  in  execution  for 
Ills  debt.  In  Rickert  o.  Madeira,  1  Kawle,  329,  the  court  said:  "A 
mortgage  must  be  considered  either  as  a  chose  in  action  or  as  giving 
title  to  the  land  and  vesting  a  real  interest  in  the  mortgagee.  In  the 
latter  case  it  would  be  liable  to  execution  ;  in  the  former  it  would  not, 
as  it  would  fall  within  the  same  reason  as  a  judgment  bond  or  simple 
contract.  If  we  should  consider  the  interest  of  the  mortgagee  as  a 
real  interest,  we  must  carry  the  principle  out  and  subject  it  to  a  dower 
and  to  the  lien  of  a  judgment ;  and  that  it  is  but  a  chose  in  action,  a 
mere  evidence  of  debt,  is  apparent  from  the  whole  current  of  decisions." 
Wilson  V.  Shoenberger's  Executors,  31  Penn.  S.  295. 

Such  being  the  character  of  a  mortgage  in  Pennsylvania,  it  cannot 
be  said,  as  was  justly  observed  by  counsel,  that  the  non-resident  holder 
and  owner  of  a  bond  secured  by  a  mortgage  in  that  State  owns  any 
real  estate  there.  A  mortgage  being  there  a  mere  chose  in  action,  it 
only  confers  upon  the  holder,  or  the  party  for  whose  benefit  the  mort- 
gage is  given,  a  right  to  proceed  against  the  property  mortgaged,  upon 
a  given  contingency,  to  enforce,  by  its  sale,  the  payment  of  his  de- 
mand. This  right  has  no  locality  independent  of  the  party  in  whom  it 
resides.  It  may  undoubtedly  be  taxed  by  the  State  when  held  by  a 
resident  therein,  but  when  held  by  a  non-resident  it  is  as  much  beyond 
the  jurisdiction  of  the  State  as  the  person  of  the  owner. 

It  is  undoubtedly  true  that  the  actual  situs  of  personal  property 
which  has  a  visible  and  tangible  existence,  and  not  the  domicile  of  its 
owner,  will,  m  many  cases,  determine  the  State  in  which  it  may  be 
taxed.  The  same  thing  is  true  of  public  securities  consisting  of  State 
bonds  and  bonds  of  municipal  bodies,  and  circulating  notes  of  bank- 
ing institutions  ;  the  former,  by  general  usage,  have  acquired  the  char- 
acter of.  and  are  treated  as,  property  in  the  place  where  they  are  found, 
tlioufh  removed  from  the  domicile  of  the  owner ;  the  latter  are  treated 
and  pass  as  money  wherever  they  are.  But  other  personal  property, 
consisting  of  bonds,  mortgages,  and  debts  generally,  has  no  situs 
independent  of  the  domicile  of  the  owner,  and  certainly  can  have  none 
where  the  instruments,  as  in  the  present  case,  constituting  the  evi- 
dences of  debt,  are  not  separated  from  the  possession  of  the  owners. 
Cases  wen;  cited  by  counsel  on  the  argument  from  the  decisions  of 
the  highest  courts  of  several  States,  which  accord  with  the  views  we 
have  expressed.  In  Davenport  v.  The  Mississippi  and  Missouri  Rail- 
road Company,  12  Iowa,  539,  the  question  arose  before  the  Supreme 
Court  of  Iowa  whether  mortgages  on  property  in  that  State  held  by 
non-residents  could  be  taxed  under  a  law  which  provided  that  all  prop- 


234  STATE    TAX    ON    FOREIGN-HELD    BONDS.  [cHAP.  II. 

erty,  real  and  personal,  within  the  State,  with  certain  exceptions  not 
material  to  the  present  case,  should  be  subject  to  taxation,  and  the 
court  said :  — 

"  Both  in  law  and  equity  the  mortgagee  has  only  a  chattel  interest 
It  is  true  that  the  s^t^ls  of' the  property  mortgaged  is  within  the  juris- 
diction of  the  State,  but,  the  mortgage  itself  being  personal  property, 
a  chose  in  action  attaches  to  the  person  of  the  owner.  It  is  agreed  by 
the  parties  that  the  owners  and  holders  of  the  mortgages  are  non- 
residents of  the  State.  If  so,  and  the  property  of  the  mortgage 
attaches  to  the  person  of  the  owner,  it  follows  that  these  mortgages 
are  not  property  within  the  State,  and  if  not  they  are  not  the  subject 
of  taxation." 

In  People  v.  Eastman,  25  Cal.  603,  the  question  arose  before  the  Su- 
preme Court  of  California  whether  a  judgment  of  record  in  Mariposa 
County  upon  the  foreclosure  of  a  mortgage  upon  property  situated  in 
that  county  could  be  taxed  there,  the  owner  of  the  judgment  being  a 
resident  of  San  Francisco,  and  the  law  of  California  requiring  all  prop- 
erty to  be  taxed  in  the  county  where  situated ;  and  it  was  held  that  it 
was  not  taxable  there.  ''The  mortgage,"  said  the  court,  "has  no 
existence  independent  of  the  thing  secured  by  it ;  a  payment  of  the 
debt  discharges  the  mortgage.  The  thing  secured  is  intangible,  and 
has  no  situs  distinct  and  apart  from  the  residence  of  the  holder.  It 
pertains  to  and  follows  the  person.  The  same  debt  may,  at  the  same 
time,  be  secured  by  a  mortgage  upon  land  in  every  county  in  the  State  ; 
and  if  the  mere  fact  that  the  mortgage  exists  in  a  particular  county  gives 
the  property  in  the  mortgage  a  situs  subjecting  it  to  taxation  in  that 
county,  a  party,  without  further  legislation,  might  be  called  upon  to 
pay  the  tax  several  times,  for  the  lien  for  taxes  attaches  at  the 
same  time  in  every  county  in  the  State,  and  the  mortgage  in  one 
county  may  be  a  different  one  from  that  in  another  although  the  debt 
secured  is  the  same." 

Some  adjudications  in  the  Supreme  Court  of  Pennsylvania  were  also 
cited  on  the  argument,  which  appear  to  recognize  doctrines  inconsistent 
with  that  announced  in  Maltby  v.  Reading  and  Columbia  Railroad 
Company,  particularly  the  case  of  McKeen  v.  The  County  of  North- 
ampton, 49  Penn.  S.  519,  and  the  case  of  Short's  Estate,  16  Id.  63, 
but  we  do  not  deem  it  necessary  to  pursue  the  matter  further.  We 
are  clear  that  the  tax  cannot  be  sustained  ;  that  the  bonds,  being  held 
by  non-residents  of  the  State,  are  only  property  in  their  hands,  and 
that  they  are  thus  beyond  the  jui-isdictiou  of  the  taxing  power  of  the 
State.  Even  where  the  bonds  are  held  by  residents  of  the  State,  the 
retention  by  the  company  of  a  portion  of  the  stipulated  interest  car. 
only  be  sustained  as  a  mode  of  collecting  a  tax  upon  that  species  oi 
property  in  the  State.  When  the  property  is  out  of  the  State  there 
can  then  be  no  tax  upon  it  for  which  the  interest  can  be  retained. 
The  tax  laws  of  Pennsylvania  can  have  no  extraterritorial  operation.; 
aor  can  any  law  of  that  State,  inconsistent  with  the  terms  of  a  con- 


SECT.  II.]       PULLMAN'S   PALACE-CAR    CO.   V.   PENNSYLVANIA.  235 

tract,  made  with  or  pa3'able  to  parties  out  of  the  State,  have  any  effect 
upon  the  contract  whilst  it  is  in  the  hands  of  such  parties  or  other  non- 
residents. The  extraterritorial  invalidity  of  State  laws  discharging  a 
debtor  from  his  contracts  with  citizens  of  other  States,  even  though 
made  and  payable  in  the  State  after  the  passage  of  such  laws,  has  been 
judicially  determined  by  this  court.  Ogden  v.  Saunders,  12  Wheaton, 
214;  Baldwin  v.  Hale,  1  Wallace,  223.  A  lilie  invalidity  must,  on 
similar  grounds,  attend  State  legislation  which  seeks  to  change  the 
obligation  of  such  contracts  in  any  particular,  and  on  stronger  grounds 
where  the  contracts  are  made  and  payable  out  of  the  State. 

Judgment  reversed^  and  the  cause  remanded  for  further  proceed^ 
inffs,  in  conform,ity  with  this  opinion} 
Davis,  Clifford,  Miller,  and  Hunt,  JJ.,  dissenting. 


PULLMAN'S   PALACE-CAR  CO.   v.   PENNSYLVANLA.. 

Supreme  Court  of  the  United  States.     1891. 
[Reported  141   United  States,  18.] 

Gray,  3.^  Upon  this  writ  of  error,  whether  this  tax  was  in  accord- 
ance with  the  law  of  Pennsylvania,  is  a  question  on  which  the  decision 
of  the  highest  court  of  the  State  is  conclusive.  The  only  question  of 
which  this  court  has  jurisdiction  is  whether  the  tax  was  in  violation  of 
the  clause  of  the  Constitution  of  the  United  States  granting  to  Congress 
the  power  to  regulate  commerce  among  the  several  States.  The  plain- 
tiff in  error  contends  that  its  cars  could  be  taxed  only  in  the  State  of 
Illinois,  in  which  it  was  incorporated  and  had  its  principal  place  of 
business. 

No  general  principles  of  law  are  better  settled,  or  more  fundamental, 
than  that  the  legislative  power  of  every  State  extends  to  all  property 
within  its  borders,  and  that  only  so  far  as  the  comity  of  that  State 
allows  can  such  property  be  affected  by  the  law  of  any  other  State. 
The  old  rule,  expressed  in  the  maxim  mobilia  sequuntur  personam^  by 
which  personal  property  was  regarded  as  subject  to  the  law  of  the  own- 
er's domicile,  grew  up  in  the  Middle  Ages,  when  movable  property  con- 
sisted chiefly  of  gold  and  jewels,  which  could  be  easily  carried  by  the 
owner  from  place  to  place,  or  secreted  in  spots  known  only  to  himself. 
In  modern  times,  since  the  great  increase  in  amount  and  variety  of  per- 
sonal property  not  immediately  connected  with  the  person  of  the  owner, 
that  rule  has  yielded  more  and  more  to  the  lex  situs,  the  law  of  the 
place  where  the  property  is  kept  and  used.     Green  v.  Van  Buskirk,  5 

1  Soe  Tappan  v.  Mercliants'  Nat.  Bank,  19  Wall.  490  ;  Detroit  v.  Board  of  Asses- 
sors, 91  Mich.  78.  —  Ed 

2  Part  of  the  opinion  of  the  court  and  j)art  of  the  dissenting  opinion  are  omitted.— 
Ed. 


23«3      Pullman's  palace-car  co.  v.  Pennsylvania,      [chap,  il 

Wall.  307.  and  7  "Wall.  139  ;  Hervej  v.  Rhode  Island  Locomotive  Works, 
93  U.  S.  664  ;  Ihukuess  v.  Russell,  118  U.  S.  663,  679;  Walworth  i\ 
Harris,  129  U.  .S.  355  ;  Story  on  Conflict  of  Laws,  §  550  ;  Wharton  on 
Conflict  of  Laws,  §§  297-311.  As  observed  by  Mr.  Justice  Story,  in 
his  commentaries  just  cited,  ••  Although  movables  are  for  many  purposes 
to  be  deemed  to  have  no  ^ilt/s,  except  that  of  the  domicile  of  the  owner, 
yet  this  being  but  a  legal  fiction,  it  yields,  whenever  it  is  necessary  for 
the  purpose  of  justice  tliat  the  actual  .ntus  of  the  thing  should  be  ex- 
amined. A  nation  witliin  whose  territory  any  personal  property  is 
actually  situate  has  an  entire  dominion  over  it  while  therein,  in  point 
of  sovereignty  and  jurisdiction,  as  it  has  over  immovable  property 
situate  there." 

For  the  purposes  of  taxation,  as  has  been  repeatedly  affirmed  by  this 
court,  personal  property  may  be  separated  from  its  owner ;  and  he  may 
be  taxed,  on  its  account,  at  the  place  where  it  is,  although  not  the 
place  of  his  own  domicile,  and  even  if  he  is  not  a  citizen  or  a  resident 
of  the  State  which  imposes  the  tax.  Lane  County  v.  Oregon,  7  Wall. 
71,  77;  Railroad  Co.  v.  Pennsylvania,  15  Wall.  300,  323,  324,  328; 
Railroad  Co.  v.  Peniston,  18  Wall.  5,  29  ;  Tappau  i'.  Merchants'  Bank, 
19  Wall.  490,  499  ;  State  Railroad  Tax  Cases,  92  U.  S.  575,  607,  608  ; 
Brown  v.  Houston,  114  U.  S.  622  ;  Coe  v.  Errol,  116  U.  S.  517,  524; 
Marye  v.  Baltimore  &  Ohio  Railroad,  127  U.  S.  117,  123. 

It  is  equally  well  settled  that  there  is  nothing  in  the  Constitution  or 
laws  of  the  United  States  which  prevents  a  State  from  taxing  personal 
property,  employed  in  interstate  or  foreign  commerce,  like  other  per- 
sonal property  within  its  jurisdiction.  .   .  . 

The  cars  of  this  company  within  the  State  of  Pennsylvania  are 
employed  in  interstate  commerce  ;  but  their  being  so  employed  does 
not  exempt  them  from  taxation  by  the  State  ;  and  the  State  has  not 
taxed  them  because  of  their  being  so  employed,  but  because  of  their 
being  within  its  territory  and  jurisdiction.  The  cars  were  continuously 
and  permanently  employed  in  going  to  and  fro  upon  certain  routes  of 
travel.  If  they  had  never  passed  beyond  the  limits  of  Pennsylvania,  it 
could  not  be  doubted  that  the  State  could  tax  them,  like  other  property, 
within  its  borders,  notwithstanding  they  were  employed  in  interstate 
commerce.  The  fact  that,  instead  of  stopping  at  the  State  boundary, 
they  cross  that  boundary  in  going  out  and  coming  back,  cannot  affect 
the  power  of  the  State  to  levy  a  tax  upon  them.  The  State,  having 
the  right,  for  the  purposes  of  taxation,  to  tax  any  personal  property 
found  within  its  jurisdiction,  without  regard  to  the  place  of  the  owner's 
domicile,  could  tax  the  specific  cars  which  at  a  given  moment  were 
within  its  borders.  The  route  over  which  the  cars  travel  extending 
beyond  the  limits  of  the  State,  particular  cars  may  not  remain  within 
the  State  ;  but  the  company  has  at  all  times  substantially  the  same 
number  of  cars  within  the  State,  and  continuously  and  constantly  uses 
there  a  portion  of  its  property  ;  and  it  is  distinctly  found,  as  matter  of 
fact,  that  the  company  continuously,  throughout  the  periods  for  which 


SECT.  II.]        PULL:MAX's    palace-car    CO.    V.    PENNSYLVANIA.       23  ( 

these  taxes  were  levied,  carried  on  business  in  Pennsylvania,  and  had 
about  oue  hundred  cars  within  the  State. 

The  mode  which  the  State  of  Pennsylvania  adopted,  to  ascertain  the 
proportion  uf  the  company's  property  upon  which  it  should  be  taxed  in 
that  State,  was  by  taking  as  a  basis  of  assessment  such  proportion  of 
the  capital  stock  of  the  company  as  the  number  of  miles  over  which  it 
ran  cars  within  the  State  bore  to  the  whole  number  of  miles,  in  that 
and  other  States,  over  which  its  cars  were  run.  This  was  a  just  and 
equitable  method  of  assessment ;  and,  if  it  were  adopted  by  all  the 
States  through  which  these  cars  ran,  the  company  would  be  assessed 
upon  the  whole  value  of  its  capital  stock,  and  no  more. 

The  validity  of  this  mode  of  apportioning  such  a  tax  is  sustained  by 
several  decisions  of  this  court,  in  cases  which  came  up  from  the  Circuit 
Courts  of  the  United  States,  and  in  which,  therefore,  the  jurisdiction 
of  this  court  extended  to  the  determination  of  the  whole  case,  and  was 
not  limited,  as  upon  writs  of  error  to  the  State  courts,  to  questions 
under  the  Constitution  and  laws  of  the  United  States. 

In  the  State  Railroad  Tax  Cases,  92  U.  S.  575,  it  was  adjudged  that 
a  statute  of  Illinois,  by  which  a  tax  on  the  entire  taxable  property  of  a 
railroad  corporation,  including  its  rolling  stock,  capital,  and  franchise, 
was  assessed  by  the  State  Board  of  Equalization,  and  was  collected  in 
each  municipality  in  proportion  to  the  length  of  the  road  within  it,  was 
lawful,  and  not  in  conflict  with  the  Constitution  of  the  State  ;  and  Mr. 
Justice  Miller,  delivering  judgment,  said:  — 

"Another  objection  to  the  system  of  taxation  by  the  State  is,  that 
the  rolling  stock,  capital  stock,  and  franchise  are  personal  property, 
and  that  this,  with  all  other  personal  property,  has  a  local  situs  at  the 
principal  place  of  business  of  the  corporation,  and  can  be  taxed  by 
no  other  county,  city,  or  town,  Init  the  one  where  it  is  so  situated. 
This  objection  is  based  upon  the  general  rule  of  law  that  personal 
property',  as  to  its  situs,  follows  the  domicile  of  its  owner.  It  may  be 
doubted  very  reasonably  whether  such  a  rule  can  be  applied  to  a  rail- 
road corporation  as  between  the  different  localities  embraced  by  its 
line  of  road.  But,  after  all,  the  rule  is  merely  the  law  of  the  State 
which  recognizes  it ;  and  when  it  is  called  into  operation  as  to  prop- 
erty located  in  one  State,  and  owned  by  a  resident  of  another,  it  is 
a  rule  of  comity  in  the  former  State  rather  than  an  absolute  principle 
in  all  cases.  Green  r.  Van  Bnskirk,  5  Wall.  812.  Like  all  other  laws 
of  a  State,  it  is,  therefore,  suiiject  to  legislative  repeal,  modification,  or 
limitation  ;  and  when  the  legislature  of  Illinois  declared  that  it  should 
not  prevail  in  assessing  personal  property  of  railroad  companies  for 
taxation,  it  simply  exercised  an  ordinary  function  of  legislation."  92 
U.  S.  607,  608. 

''  It  is  further  objected  that  the  railroad  track,  capital  stock,  and 
franchise  is  not  assessed  in  each  county  when;  it  lies,  according  to  its 
value  there,  but  according  to  an  aggngate  value  of  the  whole,  on 
which  each  county,  city,  and  town  collects  taxes  according  to  the  length 


238       Pullman's  palace-cae  co.  v.  pennsylvanl\.      [chap.  it. 

of  the  track  within  its  limits."  "  It  may  well  be  doubted  whether 
any  better  mode  of  determining  the  value  of  tiiat  poi'tion  of  the 
track  within  any  one  county  has  been  devised,  than  to  ascertain  the 
value  of  the  whole  road,  and  apportion  the  ViUue  within  the  county  bv 
its  relative  length  to  the  wliole."  "  This  court  has  expressi}-  held  in 
two  cases,  where  the  road  of  a  corporation  ran  through  different  States, 
that  a  tax  upon  the  income  or  franchise  of  the  road  was  properly  ap- 
portioned by  taking  the  whole  income  or  value  of  the  franchise,  and 
the  length  of  the  road  within  each  State,  as  the  basis  of  taxation. 
Delaware  Railroad  Tax,  18  Wall.  206;  Erie  Railroad  i\  Pennsyl- 
vania,  21   Wall.  492."     92  U.   S.   608,   611. 

So  in  Western  Union  Telegraph  Co.  v.  Attorney-General  of  Massa- 
chusetts, 125  U.  S.  530,  this  court  upheld  the  validity  of  a  tax  im- 
posed by  the  State  of  Massachusetts  upon  the  capital  stock  of  a 
telegraph  company,  on  account  of  property  owned  and  used  by  it 
within  the  State,  taking  as  the  basis  of  assessment  such  proportion 
of  the  value  of  its  capital  stock  as  the  length  of  its  lines  within  the 
State  bore  to  their  entire  length  throughout  the  country. 

Even  more  in  point  is  the  case  of  Marye  v.  Baltimore  &  Ohio 
Railroad,  127  U.  S.  117,  in  which  the  question  was  whether  a  rail- 
road company  incorporated  by  the  State  of  Maryland,  and  no  part  of 
whose  own  railroad  was  within  the  State  of  Virginia,  was  taxable 
under  general  laws  of  Virginia  upon  rolling  stock  owned  by  the 
company,  and  employed  upon  connecting  railroads  leased  by  it  in 
thai  State,  yet  not  assigned  permanently  to  those  roads,  but  used 
in'ierchangeably  upon  them  and  upon  roads  in  other  States,  as  the 
company's  necessities  required.  It  was  held  not  to  be  so  taxable, 
solely  because  the  tax  laws  of  Virginia  appeared  upon  their  face  to 
be  limited  to  railroad  corporations  of  that  State;  and  Mr.  Justice 
Matthews,  delivering  the  unanimous  judgment  of  the  court,  said:  — 

"  It  is  not  denied,  as  it  cannot  be,  that  the  State  of  Virginia  has 
rightful  power  to  levy  and  collect  a  tax  upon  such  property  used  and 
found  within  its  territorial  limits,  as  this  property  was  used  and 
found,  if  and  whenever  it  may  choose,  by  apt  legislation,  to  exert  its 
authority  over  the  subject.  It  is  quite  true,  as  the  situs  of  the  Balti- 
more and  Ohio  Railroad  Company  in  in  the  State  of  Maryland,  that 
also,  upon  general  principles,  is  the  situs  of  all  its  personal  property; 
but  for  purposes  of  taxation,  a^  well  as  for  other  purposes,  that  situs 
may  be  fixed  in  whatever  locality  the  property  may  be  brought  and 
used  by  its  owner  by  the  law  of  the  place  where  it  is  found.  If  the 
Baltimore  and  Ohio  Railroad  Company  is  permitted  by  the  State  of 
Virginia  to  bring  into  its  territory,  and  there  habitually  to  use  and 
employ  a  portion  of  its  movable  personal  property,  and  the  railroad 
company  chooses  so  to  do,  it  would  certainly  be  competent  and  legiti- 
mate for  the  State  to  impose  upon  such  properly,  thus  used  and 
employed,  its  fair  share  of  the  burdens  of  taxation  imposed  upon 
similar  property  used  in  the  like  way  by  its  own  citizens.     And  such 


'   SECT.  II.]        PULLMAIS-'S    TALACE-CAR    CO.    V.    PEXXSYLVAXTA.       230 

a  tax  might  be  properly  assessed  and  collected  in  cases  like  the 
present,  where  the  specific  and  individual  items  of  property  so  used 
and  employed  were  not  continuously  the  same,  but  were  constantly 
changing,  according  to  the  exigencies  of  the  business.  In  such 
cases,  the  tax  might  be  fixed  by  an  appraisement  and  valuation  of 
the  average  amount  of  the  propert}'  thus  habitually  used,  and  col- 
lected by  distraint  upon  any  po-rtion  that  might  at  any  time  be 
found.  Of  course,  the  lawlessness  of  a  tax  upon  vehicles  of  trans- 
portation used  by  common  carriers  might  have  to  be  considered  in 
particular  instances  with  reference  to  its  operation  as  a  regulation 
of  commerce  among  the  States,  but  the  mere  fact  that  they  were 
employed  as  vehicles  of  transportation  in  the  interchange  of  inter- 
state commerce  would  not  render  their  taxation  invalid."  127  U.  S. 
123,  124. 

For  these  reasons,  and  upon  these  authorities,  the  court  is  of  opiu> 
ion  that  the  tax  in  question  is  constitutional  and  valid.  The  result 
of  holding  otherwise  would  be  that,  if  all  the  States  should  concur  in 
abandoning  the  legal  fiction  that  personal  property  has  its  situs  at 
the  owner's  domicile,  and  in  adopting  the  system  of  taxing  it  at  the 
place  at  which  it  is  used  and  by  whose  laws  it  is  protected,  property 
employed  in  any  business  requiring  continuous  and  constant  move- 
ment from  one  State  to  another  would  escape  taxation  altogether. 

Judgnient  affirmed. 

Mr.  Justice  Bradley,  with  whom  concurred  Mr.  Justice  Field  and 
Mr.  Justice  Harlan,  dissenting. 

I  dissent  from  the  judgment  of  the  court  in  this  case,  and  will  state 
briefly  my  reasons.  I  concede  that  all  property,  personal  as  well  as 
real,  within  a  iState,  and  belonging  there,  may  I>e  taxed  by  the  State. 
Of  that  there  can  be  no  doubt.  But  where  ()r(»[)erty  does  not  belong  in 
the  State  another  question  arises.  It  is  the  question  of  the  jurisdiction 
of  the  State  over  the  property.  It  is  stated  in  the  opinion  of  the  court 
Tis  a  fundamental  proposition  on  which  the  opinion  reall\'  turns  that  all 
personal  as  well  as  real  property  witliin  a  State  is  subject  to  the  laws 
thereof.  I  conceive  that  that  proposition  is  not  maintainable  as  a  gen- 
eral and  absolute  proposition.  Amongst  independent  nations,  it  is 
true,  persons  and  property  within  the  territoiT  of  a  nation  are  subject 
to  its  laws,  and  it  is  responsible  to  other  nations  for  any  injustice  it 
may  do  to  the  persons  or  propert}'  of  such  other  nations.  This  is  a 
rule  of  international  law.  But  the  States  of  this  government  are  not 
independent  nations.  There  is  such  a  thing  as  a  Constitution  of  the 
I'niled  States,  and  there  is  such  a  thing  as  a  government  of  the  United 
Stales,  and  there  are  many  things,  and  many  persons,  and  n)any  articles 
of  property  that  a  State  cannot  lay  the  weight  of  its  finger  U[)ou,  because 
it  would  be  contrar}'  to  tiie  Constitution  of  the  United  States.  Cer- 
tainly, property  merely  carried  through  a  State  cannot  be  taxed  by  the 
State.     Such  a  tax  would  be  a  duty  —  which  a  State  cannot  impose. 


240     Pullman's  palace-cab  co.  v.  Pennsylvania,      [ctiap.  it. 

If  a  drove  of  cattle  is  driven  through  Pennsylvania  from  Illinois  to 
New  Yorli,  for  the  purpose  of  being  sold  in  New  York,  whilst  in 
P«nnsvlvania  it  may  be  subject  to  the  police  regulations  of  the  State, 
but  it  is  not  subject  to  taxation  there.  It  is  not  generally  subject  to  the 
laws  of  the  State  as  oilier  property  is.  So  if  a  train  of  cars  starts  at  Cin- 
cinnati for  New  York  and  passes  through  Pennsylvania,  it  may  be  subject 
to  the  police  regulations  of  that  State  whilst  within  it,  but  it  would  be 
repugnant  to  the  Constitution  of  the  United  States  to  tax  it.  We  have 
decided  this  very  question  in  the  case  of  State  Freight  Tax,  15  Wall. 
232.  The  point  was  directly  raised  and  decided  that  property  on  its 
passage  througli  a  State  in  tiie  course  of  interstate  commerce  cannot  be 
taxed  by  the  State,  because  taxation  is  incidentally  regulation,  and  a 
State  cannot  regulate  interstate  commerce.  The  same  doctrine  was 
recognized  in  Coe  r.  Errol,    116  U.  S.  517. 

And  surely  a  State  cannot  interfere  with  the  officers  of  the  United 
States,  in  the  performance  of  their  duties,  whether  acting  under  the 
Judicial,  Military,  Postal,  or  Revenue  Departments.  They  are  entirely 
free  from  State  control.  So  a  citizen  of  the  United  States,  or  any  other 
person,  in  the  performance  of  any  duty,  or  in  the  exercise  of  any  privi- 
lege, under  the  Constitution  or  laws  of  the  United  States,  is  absolutely 
free  from  State  control  in  relation  to  such  matters.  So  that  the  general 
proposition,  that  all  persons  and  personal  property  within  a  State  is 
subject  to  the  laws  of  the  State,  unless  materially  modified,  cannot 
be  true. 

But.  when  personal  property  is  permanently  located  within  a  State 
for  the  purpose  of  ordinary  use  or  sale,  then,  indeed,  it  is  subject  to  the 
laws  of  the  State  and  to  the  burdens  of  taxation  ;  as  well  when  owned 
by  persons  residing  out  of  the  State,  as  when  owned  by  persons  resid- 
ing in  the  State.  It  has  then  acquired  a  situs  in  the  State  where  it  is 
found. 

A  man  residing  in  New  York  "may  own  a  store,  a  factory,  or  a  mine 
in  Alabama,  stocked  with  goods,  utensils,  or  materials  for  sale  or  use 
in  that  State.  There  is  no  question  that  the  situs  of  personal  property 
so  situated  is  in  the  State  where  it  is  found,  and  that  it  may  bo  sub- 
jected to  double  taxation,  —in  the  State  of  the  owner's  residence,  as  a 
part  of  the  general  mass  of  his  estate  ;  and  in  the  State  of  its  situs. 
Although  this  is  a  consequence  which  often  bears  hardly  on  the  owner, 
yet  it  is  too  firmly  sanctioned  by  the  law  to  be  disturbed,  and  no  remedy 
seems  to  exist  but  a  sense  of  equity  and  justice  in  the  legislatures  of  the 
several  States.  The  rule  would  undoubtedly  be  more  just  if  it  made  tlie 
property  taxable,  like  lands  and  real  estate,  only  in  the  place  where  it 
is  permanently. situated. 

Personal  as  well  as  real  property  may  have  a  situs  of  its  own,  inde- 
pendent of  the  owner's  residence,  even  when  employed  in  interstate  or 
foreign  commerce.  An  oflSce  or  warehouse,  connected  with  a  steamship 
line,  or  with  a  continental  railway,  may  be  provided  with  furniture  and 
all  the  apparatus  and  appliances  usual  in  sucli  establishments.     Such 


SECT.  II.]      Pullman's  palace-cak  co.   v.  pexn-sylvaxia.     241 

property  would  be  subjeel  lo  tlie  lex  rei  .^itce  and  to  local  taxation, 
though  solely  devoted  to  the  purposes  of  tlie  business  of  those  lines. 
But  the  ships  that  traverse  the  sea,  and  the  cars  that  traverse  the  land, 
in  those  lines,  being  the  vehicles  of  commerce,  interstate  or  foreign,  and 
intended  for  its  movement  from  one  State  or  country  to  another,  and 
liaving  no  fixed  or  permanent  situs  or  home,  except  at  the  residence  of 
the  ovvner,  cannot,  without  an  invasion  of  the  powers  and  duties  of  the 
federal  government,  be  subjected  to  the  burdens  of  taxation  in  the 
places  vvdiere  thev  only  go  or  come  in  tlie  transaction  of  their  business, 
except  where  thev  belong.  Hays  r.  Pacific  Mail  Steamship  Co.,  17 
How.  596  ;  Morgan  r.  Parham,  16  Wall.  471  ;  Transportation  Co.  v. 
Wheeling,  99  U.  S.  273.  To  contend  that  there  is  any  difference  be- 
tween ca°rs  or  trains  of  cars  and  ocean  steamships  in  this  regard,  is  to 
lose  sight  of  the  essential  qualities  of  things.  This  is  a  matter  that 
does  not  depend  upon  the  affirmative  action  of  Congress.  The  regula- 
tion of  ships  and  vessels,  by  act  of  Congress,  does  not  make  them  the 
Instruments  of  commerce.  They  would  be  equally  so  if  no  such  affirma- 
tive regulations  existed.  For  the  States  to  interfere  with  them  in  either 
case  v^^ould  be  to  interfere  with,  and  to  assume  the  exercise  of,  that 
oower  which,  by  the  Constitution,  has  been  surrendered  by  the  States 
to  the  government  of  the  United  States,  namely,  the  power  to  regulate 
commerce. 

Reference  is  made  in  the  opinion  of  the  court  to  the  case  of  Railroad 
Company  v.  Maryland,  21  W^all.  456,  in  which  it  was  said  that  commerce 
on  land  between'the  different  States  is  strikingly  dissimilar  in  many  re- 
spects from  commerce  on  water ;  but  that  was  said  in  reference  to  the 
highways  of  transportation  in  the  two  cases,  and  the  diflTerence  of  control 
which  the  State  has  in  one  case  from  that  which  it  can  possibly  have  in 
the  other.  A  railroad  is  laid  on  the  soil  of  the  State,  by  virtue  of  au- 
thority granted  by  the  State,  and  is  constantly  subject  to  the  police  juris- 
diction of  the  State  ;  whilst  the  sea  and  navigable  rivers  are  high- 
ways created  by  nature,  and  are  not  subject  to  State  control.  The 
question  in  that  case  related  to  the  power  of  the  State  over  its  own 
corporation,  in  reference  to  its  rate  of  fares  and  the  remuneration  it 
was  required  to  pay  to  the  State  for  its  franchises,  — an  entirely  differ- 
ent question  from  that  which  arises  in  the  present  case. 

Reference  is  also  made  to  expressions  used  in  the  opinion  in  (Houces- 
ter  Ferry  Co.  v.  Pennsylvania.  114  U.  S.  196,  which,  standing  alone, 
would  seem  to  concede  the  right  of  a  State  to  tax  foreign  corporations 
engaged  in  foreign  or  interstate  commerce,  if  such  property  is  within 
the  jurisdiction  of  the  State.  But  the  whole  scope  of  thai  opinion  is  to 
show  that  neither  the  vehicles  of  commerce  coming  within  the  State, 
nor  the  capital  of  such  corporations,  is  taxable  there  :  but  only  the 
property  having  a  siti/s  there,  as  the  wharf  used  for  landing  passengers 
and  freio-ht.     The  entire  series  of  decisions  to  that  effect  are  cited  and 

relied  on. 

Of  course  I  do  not  mean  to  say  that  cillicr  rniboad  cars  or  ships  are 


242     pulliman's  palace-car  co.  v.  peij^^sylvania.      [chap.  II. 

to  be  free  from  taxation,  but  I  do  say  that  they  are  not  taxable  by  those 
States  in  which  the}'  are  only  transiently  present  in  the  transaction  of 
their  commercial  operations.  A  British  ship  coming  to  the  harbor  of 
New  York  from  Liverpool  ever  so  regularly  and  spending  half  its  time 
(when  not  on  the  ocean)  in  that  harbor,  cannot  be  taxed  by  the  State 
of  New  York  (liarbor,  pilotage,  and  quarantine  dues  not  being  taxes). 
So  New  York  ships  plying  regularly  to  the  port  of  New  Orleans,  so 
that  one  of  the  line  may  be  always  lying  at  the  latter  port,  cannot  be 
taxed  by  the  State  of  Louisiana.  (See  cases  above  cited).  No  more 
can  a  train  of  cars  belonging  in  Pennsylvania,  and  running  regularl}' 
from  Phihidelphia  to  New  York,  or  to  Chicago,  be  taxed  by  the  State 
of  New  York,  in  the  one  case,  or  by  Illinois,  in  the  other.  If  it  may 
lawfully  be  taxed  by  these  States,  it  may  lawfuU}-  be  taxed  by  all  the 
intermediate  States,  New  Jersey,  Oliio,  and  Indiana.  And  then  we 
should  have  back  again  all  the  confusion  and  competition  and  State 
jealousies  which  existed  before  the  adoption  of  the  Constitution,  and 
for  putting  an  end  to  which  the  Constitution  was  adopted. 

In  the  opinion  of  the  court  it  is  suggested  that  if  all  the  States  should 
adopt  as  equitable  a  rule  of  proportioning  the  taxes  on  the  Pullman 
Company  as  that  adopted  by  Pennsylvania,  a  just  system  of  taxation 
of  the  whole  capital  stock  of  the  company  would  be  the  result.  Yes, 
if — !  But  Illinois  may  tax  the  company  on  its  whole  capital  stock. 
Where  would  be  the  equity  then?  This,  however,  is  a  consideration 
that  cannot  be  compared  with  the  question  as  to  the  power  to  tax  at 
all,  —  as  to  the  relative  power  of  the  State  and  general  governments 
over  the  regulation  of  internal  commerce,  —  as  to  the  right  of  the  States 
to  resume  those  powers  which  have  been  vested  in  the  government  of 
the  United  States. 

It  seems  to  me  that  the  real  question  in  the  present  case  is  as  to  the 
situs  of  the  cars  in  question.  They  are  used  in  interstate  commerce, 
between  Pennsylvania,  New  York,  and  the  Western  States.  Their  legal 
situs  no  more  depends  on  the  States  or  places  where  thej'  are  carried  in 
the  course  of  their  operations  than  would  that  of  any  steamboats  em- 
ployed by  the  Pennsylvania  Railroad  Company  to  carry  passengers  on 
the  Ohio  or  Mississippi.  If  such  steamboats  belonged  to  a  company 
located  at  Chicago,  and  were  changed  from  time  to  time  as  their  condi- 
tion as  to  repairs  and  the  convenience  of  the  owners  might  render 
necessary,  is  it  possible  that  the  States  in  which  they  were  running  and 
landing  in  the  exercise  of  interstate  commerce  could  subject  them  to 
taxation?  No  one,  I  think,  would  contend  this.  It  seems  to  me  that 
the  cars  in  question  belonging  to  the  Pullman  Car  Company  are  in  pre- 
cisely the  same  category  ^ 


SECT.  II.]  ADAMS    EXPRESS    CO.    V.    blllO.  243 

ADAMS   EXPRESS   COMPANY   v.  OHIO. 

SUPIIKMK    Coi  KT    OK    THE    UxiTKO    StATKS.       1897. 

[Reported  ItiO  U.  S    194  ;   166  (7.  S.  185.] 

These  are  oases  involving  tiie  constitntionality  of  coitain  laws  of  the 
State  of  Ohio  providing  for  the  taxation  of  tt'U';j;rai)h,  telephone,  and 
express  companies,  and  the  validity  of  assessments  of  express  com- 
panies thereunder. 

The  general  asseml)ly  of  Ohio  passed,  April  27,  1893,90  Ohio  Laws, 
330,  an  act  to  amend  and  supplement  §§  2777,  2778,  2779,  and  2780  of 
the  Revised  Statutes  of  that  State  (commonly  styled  "  The  Nichols 
Law  ''),  wMiicli  was  amen<led  May  10,  1891.  The  law  created  a  state 
board  of  appraisers  and  assessors,  consisting  of  the  auditor  of  State, 
treasurer  of  State,  and  attorney  general,  which  was  cliarged  with  the 
duty  of  assessing  the  property  in  Ohio  of  telegraj)!!,  telephone,  and 
express  companies.  By  the  act  as  amended,  between  the  first  and  thirty- 
first  days  of  May  annually  each  telegrapli,  teleplione,  and  express  com- 
pany doing  business  in  Ohio,  was  required  to  file  a  return  wiLii  the 
auditor  of  State,  setting  forth  among  other  things  the  numl)er  of  shares 
of  its  capital  stock  ;  the  par  value  and  market  value  (or,  if  tliere  be  no 
mai-ket  value,  then  the  actual  value)  of  its  shares  at  the  date  of  the 
return  ;  a  statement  in  detail  of  the  entire  real  and  personal  property 
of  said  companies  and  where  located,  and  the  value  thereof  as  assessed 
for  taxation.  Telegraph  and  telephone  companies  were  required  to 
return,  also,  the  whole  length  of  their  lines,  and  the  length  of  so  much 
of  their  lines  as  is  without  and  is  within  the  State  of  Ohio,  including 
the  lines  controlled  and  used,  under  lease  or  otherwise.  Express  com- 
panies were  required  to  include  in  the  return  a  statement  of  their  entire 
gross  receipts,  from  whatever  source  derived,  for  the  year  ending  the 
first  dav  of  Mav.  of  business  wherever  done  ;  and  of  tlie  l)usiness  done 
in  the  State  of  Ohio,  giving  the  receipts  of  each  office  in  the  State  ; 
also  the  whole  lengtli  of  th.e  lines  of  rail  and  water  routes  over  wiiich 
the;  comi^anies  did  business,  within  and  witiiout  the  State.  Provision 
was  made  in  the  law  for  the  organization  of  tlie  l)oard,  foi-  tlie  appoint- 
ing of  one  of  its  members  as  secretary  and  the  keeping  of  full  minutes 
of  its  proceedings.  The  board  was  required  to  meet  in  tiie  month  of 
June  and  assess  the  value  of  the  property  of  these  companies  in  Oiiio. 
Tiie  rule  to  be  followed  by  the  board  in  making  the  assessment  was 
that  "in  determining  tlie  value  of  the  property  of  said  companies  in 
this  State,  to  be  taxed  within  the  State  and  assessed  as  herein  pro- 
vided, said  board  shall  be  guided  by  the  value  of  said  jiroperty  as  de- 
termined by  the  value  of  the  entire  capital  stock  of  said  companies, 
and  such  other  evidence  and  rules  as  will  enable  said  board  to  arrive  at 
tiie  true  value  in  money  of  the  entire  property  of  said  companies  within 
the  State  of  01''o,  in  t'.c  proportion  wiiicli  the  same  bears  to  the  entire 


24:4:  ADAMS    EXPRESS    CO.    V.    OHIO.  [CHAP.  II. 

property  of  said  companies,  as  deteruiiiK-d  by  tlie  value  of  the  capital 
stock  thereof,  and  the  other  evicU-nce  a-id  riilos  as  aforesaid." 

As  to  telegraph  and  telephone  companies,  the  hoard  was  required  to 
apportion  tlie  valuation  anicjng  tlie  several  counties  thiough  which  the 
lines  ran,  in  the  proportion  that  the  lengtli  of  the  lines  in  the  respective 
counties  bore  to  the  entire  length  in  the  State;  in  the  case  of  express 
companies,  the  ai)[)ortionment  was  to  be  made  among  the  several  coun- 
ties in  which  they  diil  business,  in  the  proportion  that  the  gross  receipts 
in  each  county  bore  to  tlie  gross  receipts  in  tlie  State. 

The  amount  thus  apportioned  was  to  be  ceilified  to  the  county  audi- 
tor, and  placed  by  him  on  the  duplicate  "  to  be  assessed,  and  the  taxes 
thereon  collected  the  same  as  taxes  assessed  and  collected  on  other 
personal  property,"  the  rate  of  taxation  to  be  the  same  as  tliat  on  other 
property  in  the  local  taxing  district. 

The  Valuation  of  all  the  real  estate  of  the  companies,  situated  in 
Ohio,  was  required  to  be  deducted  from  the  total  valuation,  as  fixed  by 
tlie  board. 

The  original  suits  were  brought  in  the  Circuit  Court  to  enjoin  the 
certification  of  the  a|)i)ortioned  valuations  to  the  county  auditors,  as  to 
1893,  against  the  state  board  ;  as  to  189-4  and  1895,  against  the  auditor 
of  State.^ 

The  appellants  filed  a  petition  for  a  rehearing. 

Brewer,  J.  We  have  had  before  us  at  the  present  term  several 
cases  involving  the  taxation  of  the  property  of  express  companies, 
some  coming  from  Oliio,  some  from  Indiana,  and  one  from  Kentucky  ; 
also  a  case  from  the  latter  State  involving  the  taxation  of  the  property 
of  the  Henderson  Bridge  Company.  The  Ohio  and  Indiana  cases  were 
decided  on  the  1st  of  February.  (165  U.  S.  194.)  Petitions  for  re- 
hearing of  those  cases  have  been  presented  and  are  now  before  us  for 
consideration. 

The  importance  of  the  que«tions  involved,  the  close  division  in  this 
court  upon  them,  and  the  earnestness  of  counsel  for  the  express  com- 
panies in  their  original  arguments,  as  well  as  in  their  briefs  on  this 
application,  lead  those  of  us  wlio  concurred  in  the  judgments  to  add  a 
few  observations  to  what  has  hitherto  been  said. 

Again  and  again  has  this  court  affirmed  the  proposition  that  no  State 
can  interfere  with  interstate  commerce  through  the  imposition  of  a  tax. 
by  whatever  name  called,  which  is  in  effect  a  tax  for  the  privilege  of 
transacting  such  commerce.  And  it  has  as  often  affirmed  that  such 
restriction  upon  the  power  of  a  State  to  interfere  with  interstate  com- 
merce does  not  in  the  least  degree  abridge  the  right  of  a  State  U^  tax 
at  their  full  value  all  the  instrumentalities  used  for  such  commerce. 

Now  the  taxes  imposed  upon  express  companies  by  the  statutes  of 
the  three  States  of  Ohio,  Indiana,  and  Kentucky  are  certainly  not  in 
terms  "privilege  taxes.''     They  purport  to  be  upon  the  property  of  the 

I  Part  of  the  statement  of  facts,  arguments  of  counsel,  and  the  opiuion  of  the 
Court  upon  the  first  argument,  are  omitted.  —  Kd 


SECT.  II.]  ADAMS    EXPRESS    CO.    V.    OHIO.  245 

companies.  The}'  are,  therefore,  not,  in  forni  at  least,  subject  to  any 
of  the  denunciations  against  privilege  taxes  which  have  so  often  come 
frora  this  court.  The  statutes  grant  no  privik'go  of  doing  an  express 
business,  charge  nothing  for  doing  such  a  business,  and  contemplate  only 
the  assessment  antl  levy  of  taxes  upon  the  pro[)erty  of  the  express  com- 
panies situated  within  the  respective  States.  And  the  only  really  sub- 
stantial question  is  whether,  properly  understood  and  administered,  they 
subject  to  the  taxing  power  of  the  State  property  not  within  its  territorial 
limits.  The  burden  of  the  contention  of  the  express  companies  is  that 
they  have  within  the  limits  of  the  State  certain  tangible  property,  such 
as  horses,  wagons,  etc.  ;  that  that  tangible  property  is  their  only  prop- 
erty within  the  State  ;  that  it  must  be  valued  as  other  like  property, 
and  upon  such  valuation  alone  can  taxes  be  assessed  and  levied  against 
them. 

But  this  contention  practically  ignores  the  existence  of  intangible 
property,  or  at  least  denies  its  liability  for  taxation.  In  the  complex 
civilization  of  to-day  a  large  portion  of  the  wealth  of  a  community  con- 
sists in  intangible  property-,  and  there  is  nothing  in  the  nature  of  things 
or  in  the  limitations  of  the  Federal  Constitution  which  restrains  a  State 
from  taxing  at  its  real  value  such  intangible  propert}-.  Take  the  sim- 
plest illustration  :  B,  a  solvent  man,  purchases  from  A  certain  pro])- 
erty.  and  gives  to  A  his  promise  to  pay,  say,  SIOO.OOO  therefor.  Such 
promise  ma}-  or  may  not  he  evidenced  by  a  note  or  other  written  instru- 
ment. The  property  conveyed  to  B  may  or  may  not  be  of  the  value  of 
8100,000.  If  there  be  nothing  in  the  way  of  fraud  or  misrepresenta- 
tion to  invalidate  that  transaction,  there  exists  a  legal  promise  on  the 
part  of  B  to  pay  to  A  SIOO.OOO.  That  promise  is  a  part  of  A's  prop- 
erty. It  is  something  of  value,  something  on  which  he  will  receive 
cash,  and  which  he  can  sell  iu  the  markets  of  the  community  for  cash. 
It  is  as  certainly  property,  and  [)roperly  of  value,  as  if  it  were  a  build- 
ing or  a  steaml)oat,  and  is  as  justly  subject  to  taxation.  It  matters 
not  in  what  this  intangible  property  consists  —  whether  privileges,  cor- 
porate franchises,  contracts,  or  obligations.  It  is  enough  that  it  is 
property  which  though  intangible  exists,  which  has  value,  i)roduces 
income,  and  passes  current  in  the  markets  of  the  world.  To  ignore 
this  intangible  property,  or  to  hoM  that  it  is  not  subject  to  taxation  at 
its  accepted  value,  is  to  eliminate  from  the  reach  of  the  taxing  power  a 
large  portion  of  the  wealth  of  the  country.  Now,  wiienever  sei)arate 
articles  of  tangible  property  are  joined  together,  not  simply  by  a  unity 
of  ownership,  but  in  a  unity  of  use,  there  is  not  infrequently  developed 
a  property,  intangilde  though  it  may  be,  which  in  value  exceeds  the 
aggregate  of  the  value  of  the  separate  pieces  of  tangible  property. 
Upon  what  theory  of  sul)stantial  right  can  it  be  adjudged  that  the  value 
of  this  intangible  properly  must  be  excluded  from  the  tax  lists,  and 
the  only  property  placed  thereon  be  the  separate  pieces  of  tangible 
property  ? 

Tlie    first  question   to  be  considered   then-fore    is   whether   there   is 


240  ADAMS    EXPRESS    CO.    V.    OHIO.  [cHAP.  II. 

belonging  to  these  express  companies  intangible  property  —  property 
differing  from  the  tangible  property  —  a  property  created  by  either  the 
combined  use  or  the  manner  of  use  of  the  separate  articles  of  tangible 
property,  or  ihe  grant  or  acquisition  of  francliises  or  privileges,  or  all 
together.     To  say  that  there  can  be  no  such  intangible  property,  that 
it  is  something  of  no  value,  is  to  insult  the  couimon  intelligence  of 
every   man.      Take   the  Henderson   Bridge   Couipauy's   property,    the 
validity  of  the  taxation  of  which  is  before  us  in  another  case.     The 
facts  disclosed  in  that  record  show  that  the  bridge  company  owns  a 
bridge  over  the  Ohio,  between  the  city  of  Henderson  in  Kentucky  and 
the   Indiana  shore,   and   also  ten  miles  of  railroad  in    Indiana;    that 
tliat  tangible  property  —  that  is,  the  bridge  and  railroad  track  —  was 
assessed  in  the  States  of  Indiana  and  Kentucky  at  $1,277,695.54,  sttch- 
therefore,  being  the  adjudged  value  of  the  tangible  property.    Thus  the 
physical  pro()erty  could  presumably  be  rei)roduced  by  an  expenditure 
of  that  sum,  and  if  placed  elsewhere  on  the  Ohio  River,  and  without 
its  connections  or  the  business  passing  over  it  or  the  franchises  con- 
nected with  it,  might  not  of  itself  be  worth  any  more.     As  mere  bridge 
and  tracks,  that  was  its  value.     If  the  State's  power  of  taxation  is  lim- 
ited to  the  tangible  property,  the  company  should  only  be  taxed  in  the 
two  States  for  that  sum,  but  it  also  appears  that  it,  as  a  corporation, 
had   issued   bonds   to  the   amount   of  $2,000,000,   upon   which   it   was 
paying  interest;   that  it  had  a  capital  stock  of  $1,000,000,  and  that 
the  shares  of  that  stock  were  worth  not  less  than  S90  per  share  in 
the  market.     The  owners,  therefore,  of  that  stock  had  property  which 
for  purposes  of  income  and   puri)oses  of  sale  was  wortli   $2,900,000. 
What  gives  this  excess  of  value?     Obviously  the  franchises,  the  privi- 
ieses  the  company  possesses  —  its  intangible  property. 

Now,  it  is  a  cardinal  rule  which  should  never  be  forgotten  that  what- 
ever property  is  worth  for  tlie  purposes  of  income  and  sale  it  is  also 
worth  for  purposes  of  taxation.  Suppose  such  a  bridge  were  entirely 
within  the  territorial  limits  of  a  State,  and  it  appeared  that  the  bridge 
itself  cost  only  $1,277,000,  could  be  reproduced  for  that  sum,  and  yet 
it  was  so  situated  with  reference  to  railroad  or  other  connections,  so 
used  by  the  travelling  public,  that  it  was  worth  to  the  holders  of  it  in 
the  matter  of  income  $2,900,000,  could  be  sold  in  the  markets  for  that 
sum,  was  therefore  in  the  eyes  of  practical  business  men  of  the  value 
of  $2,900,000,  can  there  be  any  doubt  of  the  State's  power  lo  assess  it 
at  that  sum,  and  to  collect  taxes  from  it  upon  that  basis  of  value? 
Substance  of  right  demands  that  whatever  be  the  real  value  of  any 
property,  that  value  may  be  accepted  by  the  State  for  purpose  of  taxa- 
tion, and  this  ought  not  to  be  evaded  by  any  mere  confusion  of  words. 
Suppose  an  express  company  is  incorporated  to  transact  business  within 
the  limits  of  a  State,  and  does  business  only  within  such  limits,  and  for 
the  purpose  of  transacting  that  business  purchases  and  holds  a  few 
thousands  of  dollars'  worth  of  horses  and  wagons,  and  yet  it  so  meeU 
the  wants  of  the  people  dwelling  in  that  State,  so  uses  the  tangiblb 


SECT.  II.]  ADAMS    EXPRESS    CO.     C.    OHIO.  24  < 

property  which  it  possesses,  so  transacts  business  therein  that  its  stock 
becomes  in  the  nuukcts  of  the  State  of  the  actual  cash  value  of  hun- 
.h-eds  of  thousands  of  dollars.  To  the  owners  thereof,  for  the  purposes 
of  income  and  sale,  the  corporate  property  is  worth  hundreds  of  thou- 
sands of  dollars.  Docs  substance  of  right  require  that  it  shall  pay 
taxes  only  upon  the  thousands  of  dollars  of  tangible  property  which  it 
possesses?  Acc-uniulated  wealth  will  laugh  at  the  crudity  of  taxing 
laws  which  reach  only  the  one  and  ignore  the  other,  while  they  who 
own  ta::gible  property,  not  organized  into  a  single  producing  plant, 
will  feel  the  injustuje  of  a  system  which  so  misplaces  the  burden  of 
taxation. 

A  distinction  must  be  noticed  between  the  construction  of  a  State 
law  and  the  power  of  a  State.  If  a  statute,  properly  construed,  con- 
templates only  the  taxation  of  horses  and  wagons,  then  those  belonging 
to  an  express  company  can  be  taxed  at  no  higher  value  than  those 
belonging  to  a  farmer.  But  if  the  State  compr-^hends  all  property  in 
its  s<;heme  of  taxation,  then  the  good  will  of  an  organized  and  estab- 
lished industry  must  be  recognized  as  a  thing  of  value.  The  capital 
stock  of  a  corporation  and  the  shares  in  a  joint  stock  company  repre- 
sent not  only  the  tangible  property,  but  also  the  intangible,  including 
therein  all  corporate  franchises  and  all  contracts,  privileges,  and  good 
will  of  the  concern. 

Now,  the  same  reality  of  the  value  of  its  intangible  property  exists 
when  a  company  does  not  confine  its  work  to  the  limits  of  a  single 
State.  Take,  for  instance,  the  Adams  Express  Company.  According 
to  the  return  filed  by  it  with  the  auditor  of  the  State  of  Ohio,  as  shown 
in  the  records  of  these  cases,  its  number  of  shares  was  120,000,  the 
market  value  of  each  ^140  to  §150.  Taking  the  smaller  sum,  gives  the 
value  of  the  coiijpany's  property  taken  as  an  entirety  as  $16,800,000. 
In  other  words,  it  is  worth  that  for  the  purposes  of  income  to  the 
holders  of  the  stock  and  for  purposes  of  sale  in  the  markets  of  the 
land.  But  in  the  same  return  it  shows  that  the  value  of  its  real  estate 
in  Ohio  was  only  $25,170;  of  real  estate  owned  outside  of  Ohio, 
$3,005,157.52;  or  a  total  of  $3,030,327.52;  the  value  of  its  personal 
property  in  Ohio,  $42,065;  of  personal  property  outside  of  Oliio, 
$1,117,426.05;  or  a  total  of  $1,159,491.05,  making  a  total  valuation 
of  its  tangible  property  $4,189,818.57,  and  upon  that  basis  it  insists 
that  taxes  shall  be  levied.  But  what  a  mockery  of  suusujntial  justice 
it  would  be  for  a  c(jrporatii)n,  whose  property  is  worth  to  its  stock- 
holders for  the  purpo.ses  of  income  and  sale  $16,800,000,  to  be  ad- 
judged liable  for  taxation  only  upon  one  fourth  of  tliat  amount.  The 
value  which  property  bears  in  the  market,  the  amount  for  which  itp 
stock  can  be  bought  and  sold,  is  the  real  value.  Business  men  do  nor. 
pay  cash  for  property  in  moonshine  or  dicanilaiid.  They  buy  and  pcv 
for  that  whicli  is  of  value  in  its  power  to  produce  income,  or  for  pur 
poses  of  sale. 

It  is  su<'gested  that  the  company  niav  have  l)onds,  stocks,  or  other 


248  ADAMS    EXPRESS    CO.    V.    OHIO.  [cHAP.  II. 

investments  which  prudiiee  a  part  of  the  vaUie  of  its  capital  stock,  and 
which  have  a  special  situs  in  other  Slates  or  are  exempt  from  taxation. 
If  it  has,  let  it  show  the  fact.     Courts  deal  witii  tilings  as  they  are,  and 
do  not  determine  rights  upon  mere  possibiUties.    If  half  of  the  property 
of  the  Adams  Express  Company,  which  by  its  own  showing  is  worth 
$16,000,000  and  over,  is  invested  in   United   States  bonds,  and  there- 
fore exempt  from  taxation,  or  invested  in  any  way  outside  the  business 
of  the  company  and  so  as  to  be  subject  to  purely  local  taxation,  Kt 
that  fact  be  disclosed,  and  then  if  the  State  of  Ohio  attempts  to  include 
within  its  taxing  power  such  exempted  property,  or  property  of  a  dif- 
ferent situs,  it  will  be  time  enough  to  consider  and  determine  the  rights 
of  the  company.     That  if  such  facts  exist  they  must  be  taken  into  con- 
sideration by  a  State  in  its  proceedings  under  such  tax  laws  as  are  here 
presented  has  been  heretofore  recognized   and   distinctly   affirmed   l)y 
this  court.      Pittsburgh,  Cincinnati,   etc.   Railvyay  Co.   /•.   Backus,    154 
U.  S.  421,  443;  Western  Union  Telegraph  Co.  r.  Taggart,  103  U.  S.  1, 
23  ;  Adams  Express  Co.  v.  Ohio,  165  U.  S.  194,  227.     Presumably  all 
that  a  corporation  has  is  used  in  the  transaction  of  its  business,  and  if 
it  has  accumulated  assets  which  for  any  reason  affect  the  question  of 
taxation,  it  should  disclose  them.      It  is  called  upon  to  make  return 
of  its  property,  and  if  its  return  admits  that  it  is  possessed  of  property 
of  a  certain  value,  and  does   not  disclose  anything  to  show  that  any 
portion   thereof  is   not  subject  to  taxation,  it  cannot  complain  if  the 
Stale  treats  its  property  as  all  taxal)le. 

But  where  is  the  situs  of  this  intangible  property?  The  Adams 
Express  Company  has,  according  to  its  showing,  in  round  numbers 
$4,000,000  of  tangible  property  scattered  through  different  States,  and 
with  that  tangible  property  thus  scattered  transacts  its  business.  By 
tiie  business  which  it  transacts,  by  combining  into  a  single  use  all  these 
separate  pieces  and  articles  of  tangible  property,  by  the  contracts, 
franchises,  and  privileges  which  it  has  acquired  and  possesses,  it  has 
created  a  corporate  property  of  the  actual  value  of  $16,000,000.  Thus, 
according  to  its  figures,  this  intangible  property,  its  franchises,  privi- 
leges, etc.,  is  of  the  value  of  $12,000,000,  and  its  tangible  property  of 
oi^ly  $4,000,000.  Where  is  the  situs  of  this  intangible  property?  Is 
it  simply  where  its  home  office  is,  where  is  found  the  central  directing 
thought  which  controls  the  workings  of  the  great  machine,  or  in  the 
State  which  gave  it  its  corporate  franchise;  or  is  that  intangible  prop- 
erty distributed  wherever  its  tangible  property  is  located  and  its  work 
is  done?  Clearly,  as  we  think,  the  latter.  Every  State  witliin  which 
it  is  transacting  business  and  where  it  has  its  property,  more  or  less, 
may  rightfully  say  that  the  $16,000,000  of  value  which  it  possesses 
springs  not  merely  from  the  original  grant  of  corporate  power  by  the 
State^hich  incorporated  it,  or  from  the  mere  ownership  of  the  tangible 
property,  but  it  springs  from  the  fact  that  that  tangible  property  it  has 
combined  with  contract:,  franchises,  and  privileges  into  a  single  unit  of 
property,  and  this  State  contributes  to  that  aggregate  value  not  merely 


SECT.  II.]  ADAMS    EXPRESS    CO,     V.    OHIO.  249 

the  separate  value  of  such  tangible  property  :is  is  within  its  huiits,  bin 
its  proportionate  share  of  the  value  of  the  entire  pro[)erty.  That  tliis 
is  true  is  obvious  from  the  result  that  would  follow  if  all  the  Statis 
other  than  the  one  which  created  the  corporation  could  and  should 
withhohl  from  it  the  right  to  transact  express  business  within  tlu'ir 
limits.  It  might  continue  to  own  all  its  tangible  property  within  each 
of  those  States,  but  unable  to  transact  the  express  business  within  iheir 
limits,  that  S12,000.000  of  value  attributable  to  its  intangible  property 
would  shrivel  to  a  mere  trifle. 

It  may  be  true  that  the  principal  otHce  of  the  corporation  is  in  New 
York,  and  that  for  certain  purposes  the  maxim  of  the  common  law  was 
"  mobilia  personam  sequuntur"  but  that  maxim  was  never  of  universal 
application,  and  seldom  interfered  with  the  right  of  taxation.  Pull- 
man's Palace  Car  Co.  r.  Pennsylvania,  141  U.  S  18,  22.  It  woidd 
certainly  seem  a  misapplication  of  the  doctrine  exi^ressed  in  that  uinxiin 
to  hold  that  by  merely  transferring  its  principal  office  across  the  river 
to  Jersey  City  the  situs  of  $12,000,000  of  intangible  pro[)erty  for  pur- 
poses of  taxation  was  changed  from  the  State  of  New  York  to  that  of 
New  Jersey. 

It  is  also  true  that  a  corporation  is,  for  i)nr|)oses  of  jurisdiction  in 
the  Federal  courts,  conclusively  presumed  to  be  a  citizen  of  the  State 
which  created  it,  but  it  does  not  follow  therefrom  that  its  franchise  to 
be  is  for  all  purposes  to  be  regarded  as  confined  to  that  State.  For 
the  transaction  of  its  business  it  goes  into  various  States,  and  wherever 
it  goes  as  a  corporation  it  carries  with  it  that  franchise  to  be.  Hut  the 
franchise  to  be  is  only  one  of  the  franchises  of  a  corporation.  Tiu' 
franchise  to  do  is  an  independent  franchise,  or  latliei-  a  combina- 
tion of  franchises,  embracing  all  things  which  the  corporation  is  given 
power  to  do,  and  this  power  to  do  is  as  much  a  thing  of  value  and  a 
part  of  the  intangible  property  of  the  corporation  as  the  franchise  to 
be.  Frauchisj^b  to  do  go  wherever  the  work  is  done.  The  Southern 
Pacific  Railway  Company  is  a  corporation  chartered  by  the  State  of 
Kentucky,  yet  within  the  limits  of  that  State  it  is  said  to  have  no  tan- 
gible property  and  no  office  for  the  transaction  of  business.  The  vast 
amount  of  tangible  i)roperty  \\\\\c\\  by  lease  or  otluTwise  it  holds  and 
operates,  and  all  the  franchises  to  do  which  it  exercises,  exist  and  are 
exercised  in  the  States  and  Territories  on  the  Pacific  Slope.  Do  not 
these  intangil)le  properties  —  these  franchises  to  do  —  exercised  in  con- 
nection witii  tile  tangible  property  which  it  holds,  create  a  substantive 
matter  of  taxation  to  be  asserted  b^-  every  State  in  wiiich  that  lanuible 
property  is  found  ? 

It  is  said  that  the  views  thus  expressed  open  the  door  to  possiliilitics 
of  gross  injustice  to  these  coi'ijorations,  through  the  conliictinu-  action 
of  the  different  States  in  matters  of  taxation.  That  nun  l)e  so.  :iiid 
the  courts  may  be  called  upon  to  relieve  against  such  almscs.  Hut 
siicii  possiliilities  do  not  etpial  the  wrong  which  siistaininn-  the  contcii- 
tioi;  <;!"  t!i  ■  ;tpp(llant  would  at  once  do.      In  the  citv  of  New  York  are 


•250  ADAMS    EXPRESS    CO.     r.    OHIO.  [CHAP.  II. 

located  the  neadquarters  of  a  corporation,  whose  corporate  pro^jerty  is 
confessedly  of  the  value  of  S16, 000,000  —  a  value  which  can  be  realized 
by  its  stockholders  at  any  moment  they  see  fit.  Its  tangible  property 
ajid  its  business  is  scattered  through  many  States,  all  whose  powers 
are  invoked  to  protect  its  property  from  trespass  and  secure  it  in  the 
peaceful  transaction  of  its  widely  dispersed  business.  Yet  because  that 
tangible  property  is  only  84.000.000  we  are  told  that  that  is  the  limit 
of  the  taxing  power  of  these  States.  In  other  words,  it  asks  tliese 
States  to  protect  property  which  to  it  is  of  the  value  of  Si 6.000.000, 
but  is  willins:  to  pay  taxes  only  on  the  basis  of  a  valuation  of  ?4:. 000.000. 
The  injustice  of  this  speaks  for  itself. 

In  conclusion,  let  us  say  that  this  is  eminently  a  practical  age  :  that 
courts  must  recognize  things  as  they  are  and  as  possessing  a  value 
which  is  accorded  to  them  in  the  markets  of  the  world,  and  that  no 
finespun  theories  about  situs  should  interfere  to  enable  these  large  cor- 
porations, whose  business  is  carried  on  through  many  States,  to  escape 
from  bearing  in  each  State  such  burden  of  taxation  as  a  fair  distribu- 
tion of  the  actual  value  of  their  property  among  those  States  requires. 

The  petition  for  a  rehearing  is 

JJe/i  led. 

White.  J.  '  with  whom  were  Field.  HaPvLak.  and  Beuwn.  J  J.), 
dissenting.^ 

It  is  eleraentarv  that  the  taxing  power  of  one  government  cannot  be 
lawfuUv  exerted  over  property  not  within  its  jurisdiction  or  territory 
and  within  the  territory  and  jurisdiction  of  another.  The  attempted 
exercise  of  such  power  would  be  a  clear  usurpation  of  authority,  and 
involve  a  denial  of  the  most  obvious  conceptions  of  government.  This 
rule,  common  to  all  jurisdictions,  is  peculiarly  applicable  to  the  several 
States  of  the  Union,  as  they  are  by  the  Constitution  confined  within 
the  orbit  of  their  lawful  authority,  which  they  cannot  transcend  with- 
out destroying  the  legitimate  powers  of  each  other,  and.  therefore,  with- 
out violating  the  Constitution  of  the  United  States. 

In  assessing  the  actual  intrinsic  value  of  tangible  property  of  ex- 
press companies  in  the  State  of  Ohio  it  was  the  duty  of  the  assessing 
board  to  add  to  such  value  a  proportionate  estimate  of  the  capital 
stock,  so  as  thereby  to  assess  not  only  the  tangible  property  within  the 
State,  but  also  along  with  such  property  a  part  of  the  entire  capital 
stock  of  the  corporation,  without  reference  to  its  domicil,  and  equally 
without  reference  to  the  situation  of  the  property  and  assets  owned  by 
the  company  from  which  alone  its  capital  stock  derives  value.  In  other 
words,  although  actual  property  situated  in  States  other  than  Ohio  may 
not  be  assessed  in  that  State,  yet  that  it  may  take  all  the  value  of  the 
property  in  other  States  and  add  such  portion  thereof,  as  it  sees  fit.  to 
the  assessment  in  Ohio,  and  that  tliis  process  of  taxation  of  property 

1  This  opinion  was  delivered  upon  the  first  argument.     Part  of  it  onlv  is  given. 

—Ed. 


siCT.  II.]  ADAMS    EXPRESS    CO.    V.    OHIO.  251 

in  other  States,  in  violation  of  the  Constitution,  becomes  legal  provided 
onlv  it  is  called  taxation  of  property  within  the  State. 

If  the  rule  contended  for  by  the  State  of  Ohio  be  true,  why  would  it 
not  apply  to  a  corporation,  partnership,  or  individual  engaged  in  the 
dry  goods  business  or  ano*'  other  business  having  branches  in  various 
States  ?     Would  it  not  be  as  proper  to  say  of  such  agencies,  as  it  is  of 
the  agencies  of  express  companies,  that  there  is  an   intellectual  unity 
of  earnings  between  the  main  establishment  and  all  such  asencies.  and 
therefore  a  right  to  assess  goods  found  in  an  agency  with  relation  to 
the  capital  and  wealth  of  the  original  house  and  all  the  other  branches 
situated  in  other  States?     Take  the  case  of  a  merchant  carrying  on  a 
general  commercial  business  in  one  State  and  having  connections  of 
confidence  and  credit  with  another  merchant  of  great  capital  in  another 
State.     If  this  rule  be  true,  can  it  not  also  be  said  that  such  merchant 
derives  advantages  in  his  business  from  the  sum  of  the  capital  in  other 
States  which  may  be  availed  of  to  extend   his  credit  and  his  capacitv 
to  do  business,  and  that  therefore  his  tangible  property  must  be  valued 
accordingly?      Suppose   bankers    in    Boston.   Philadelphia,  and    New 
York  of  great  wealth,  owning  stocks  and  bonds  of  various  kinds,  send 
representatives  to  New  Orleans  with  a  limited  sum  of  monev  there  to 
commence  business.     These  representatives  rent  offices  andbuv  office 
furniture.     Is  it  not  absolutely  certain  that  the  business  of  those  indi- 
viduals would  be  largely  out  of  proportion  to  the  actual  capital  pos- 
sessed by  them,  because  of  the  fact  that  reflexly  and  indirectlv  their 
business  and  credit  is  supported  by  the  home  offices?    In  this  situation, 
the  assessor  comes  for  their  tax  return.     He  finds  noted  thereon  onlv  a 
limited  sum  of  money  and  the  value  of  the  office  furniture.     What  is 
to  prevent  that  official  under  the  rule  of  supposed  metaphysical  or  intel- 
lectual unity  between  property  from  saying:  "It  is  true  you  have  but 
a  small  tangible  capital,  and  your  office  furniture  is  only  worth  8250. 
but  the  value  of  property  is  in  its  use,  and  as  you  have  various  elements 
of  wealth  situated  in  the  cities  named.  I  will  assess  your  propertv  be- 
cause of  its  use  at  a  miUion  dollars'"?     Such  conduct  would  be"  ex- 
actly in  accord  with  the  power  of  taxation  which  it  is  here  claimed  the 
State  of  Ohio  possesses,  and  which,  as  I  understand  it.  the  court  now 
upholds.     To  give  the  illustrations.  I   submit,  is  to  point  to  the   con- 
fusion, injustice,  and  impossibility  of  such  a  rule. 


252  KEW    OKLEAIS^S    V.    STEMl'EL.  [ciIAP.  li. 


NEW  ORLEANS  v.  STEMPEL. 
Supreme  Court  of  the  UiNited  States.     1899. 

[Reported  175  United  States,  309.] 

Brewer,  J.^  This  case  came  on  appeal  from  the  Circuit  Court  of 
iiie  United  States  for  the  Eastern  District  of  Louisiana.  It  is  a  suit 
brought  by  the  appellee  to  restrain  the  collection  of  taxes  levied  upon 
certain  personal  property  which  slie  claims  was  exempt  from  taxation. 
.  The  assessment  .  .  .  was  of  $15,000 '' money  in  possession,  on 
deposit,  or  in  hand,"  and  of  $800,000  ''  money  loaned  on  interest,  all 
credits  and  all  bills  receivable,  for  money  loaned  or  advanced,  or  for 
goods  sold  ;  and  all  credits  of  any  and  every  description."  .  .  . 

Under  the  circumstances  disclosed  by  the  testimony,  were  the  money 
and  credits  subject  to  taxation  ?  It  appears  that  these  credits  were 
evidenced  by  notes  largely  secured  by  mortgages  on  real  estate  in  New 
Orleans  ;  that  these  notes  and  mortgages  were  in  the  city  of  New 
Orleans,  in  possession  of  an  agent  of  the  plaintiff,  who  collected  the 
interest  and  principal  as  it  became  due,  and  deposited  the  same  in  a 
bank  in  New  Orleans  to  the  credit  of  the  plaintiff.  The  question,  there- 
fore, is  distinctly  presented  whether,  because  the  owners  were  domi- 
ciled in  the  State  of  New  York,  the  moneys  so  deposited  in  a  bank 
within  the  limits  of  the  State  of  Louisiana,  and  the  notes  secured  by 
mortgages  situated  and  held  as  above  described,  were  free  from  taxa- 
tion hi  the  latter  State.  Of  course  there  must  be  statutory  warrant  for 
such  taxation  ;  for  if  the  legislature  omits  any  property  from  the  list  of 
taxables,  the  courts  are  not  authorized  to  correct  the  omission  and 
adjudge  the  omitted  property  to  be  subject  to  taxation. - 

From  this  review  of  the  decisions  of  the  Supreme  Court  of  the  State, 
it  is  obvious  that  moneys,  such  as  those  referred  to,  collected  as  in- 
terest and  principal  of  notes,  mortgages,  and  other  securities  kept 
within  the  State,  and  deposited  in  one  of  the  banks  of  the  State  for 
use  or  reinvestment,  are  taxable  under  the  act  of  1890.  They  are 
property  arising  from  business  done  in  the  State  ;  they  were  tangible 
property  when  received  by  tlie  agent  of  the  plaintiffs,  and  as  such  sub- 
ject to  taxation,  and  their  taxability  was  not,  as  the  court  holds,  lost 
by  their  mere  deposit  in  a  bank.  It  is  true  that  when  deposited  the 
moneys  became  the  property  of  the  bank,  and  for  most  purposes  the 
relation  of  debtor  and  creditor  arose  between  the  bank  and  the  de- 
positor ;  yet,  as  evidently  the  moneys  were  to  be  kept  in  the  State  for 

1  Part  of  the  opinion  is  omitted. —  Ed. 

2  The  court  here  cited  Acts  La.  1890,  c.  121 ;  Liverpool,  etc.  Ins.  Co.  v.  Board  of 
Assessors,  44  La.  Ann.  760  ;  Railey  v.  Board  of  Assessors,  44  La.  Ann.  765;  Clason  v. 
New  Orleans,  46  La.  Ann.  1 ;  Bluefield  Banana  Co.  v.  Board  of  Assessors,  49  La.  Ann. 
43  ;  Parker  v.  Strauss,  49  La.  Ann.  1173  ;  London  &  Liverpool  lus.  Co.  v.  Board  of 
Assessors,  51  La.  Ann.  1028. —  Ei> 


SECT.  II.]  ifE^v    ORLEA.XS    V.    STEMPEL.  £53 

reinvestuKMit  ur  otiuT  ..sf,  il„.\  .vina.iitVt  stii!  subject  to  taxation,  ac- 
cording to  the  .lecisiou  in  41)  La  Ann.  43.  With  regard  to  the  notes 
and  mortgages,  it  may  be  conceded  that  there  is  no  express  decision  of 
the  hnpreme  Court  to  the  effect  tliat  they  were  taxable  under  tlie  law 
of  1890  ;  yet  the  reasoning  of  that  court  in  several  cases  and  its  decla- 
rations, although  perhaps  only  dicta,  show  that  clearlv  in  its  judc^ment 
they  had  a  local  situs  within  tiie  State,  and  were  by  the  statute  of  1890 
subject  to  taxation. 

When  the  question  is  whetlier  property  is  exempt  from  taxation,  and 
that  exemption  depends  alone  on  a  true  construction  of  a  statute  of  the 
State,  the  Federal  courts  should  be  slow  to  declare  an  exemption  in 
advance  of  any  decision  by  the  courts  of  the  State.  The  rule  in  such 
a  case  is  that  the  Federal  courts  follow  the  construction  placed  upon 
the  statute  by  the  State  courts,  and  in  advance  of  such  construction 
they  should  not  declare  property  be3ond  tiie  scope  of  the  statute  and 
exempt  from  taxation  unless  it  is  clear  that  such  is  the  fact.  In  other 
words,  tliey  should  not  release  any  property  within  the  State  from  its 
liability  to  State  taxation  unless  it  is  obvious  that  the  statutes  of  the 
State  warrant  such  exemption,  or  unless  the  mandates  of  the  Federal 
Constitution  compel  it. 

If  we  look  to  the  decisions  of  other  States,  we  find  the  frequent  rulincr 
that  when  an  indebtedness  has  taken  a  concrete  form  and  l,ecome  evi" 
denced  by  note,  bill,  mortgage,  or  otlior  written  instrument,  and  that 
written  instrument  evidencing  the  indebtedness  is  left  within  the  State 
in  the  hands  of  an  agent  of  the  non-resident  owner,  to  be  bv  him  used 
for  the  purposes  of  collection  and  deposit  or  reinvestment  "within  the 
.State,  Its  taxable  situs  is  in  the  State.  See  Catlin  r.  Hull,  21  Vt.  Url. 
in  which  the  rule  was  thus  announced  (pages  159,  l(Jl)  -. -L 

'-It  is  undoubtedly  true  that,  by  the  generallv  acknowledged  prin- 
ciples of  i)ublic  law,  personal  ciiattels  follow  the  person  of  the  owner 
and  that  upon  his  death  they  are  to  be  distributed  accordino-  to  tlie 
aw  of  his  domicile  :  and,  in  general,  any  convevance  of  chattels  crood 
by  the  law  of  his  own  domicile  will  be  good  elsewhere.  ]^,ut  tiiis^-ule 
IS  merely  a  legal  fiction,  adopted  from  considerations  of  oc>„eral  con- 
venience and  policy  for  the  benefit  of  commerce,  and  to  enable  persons 
to  dispose  of  tlieir  i)roperty  at  their  decease  agrceablv  to  tlieir  wishes 
without  being  embarrassed  by  their  want  of  knowledge  in  relation  to 
tiie  laws  of  the  country  where  the  same  is  situated.  But  even  this 
doctrine  is  to  be  received  and  understood  with  this  limitation,  that 
there  is  no  i)ositive  law  of  tlie  country  wliere  the  i)ropertv  is  in  fact 
winch  contravenes  the  law  of  liis  domicile  ;  for  if  there  is,  the  law  of  the 
<nvner's  domicile  must  yield  to  the  law  of  the  State  where  the  property 
IS  in  fact  situate."  "^ 

"We  are  not  only  satisfied  that  this  method  of  taxation  is  well 
founded  in  principle  and  upon  authority,  but  we  think  it  cntirclv  just 
and  equitable  that,  if  persons  residing  abrond   i)ring  tlieir  propertV  and 


254  NEW    OKLEA]^S    V.    STEMPEL.  [ CHAP.  11. 

invest  it  in  this  State,  for  the  purpose  of  deriving  profit  from  its  use 
and  emplo^-ment  here,  and  thus  avail  themselves  of  the  benefits  and 
advantages  of  our  laws  for  the  protection  of  their  property,  their  prop- 
erty should  yield  its  due  projjortion  towards  the  support  of  the  govern- 
ment which  thus  protects  it." 

In  Goldgart  v.  People,  106  111.  25,  28,  the  court  said:  — 

"  If  the  owner  is  absent,  but  the  credits  are  in  fact  here,  in  the 
hands  of  an  agent,  for  renewal  or  collection,  with  the  view  of  reloaning 
the  money  by  the  agent  as  a  permanent  business,  they  have  a  situs  here 
for  the  purpose  of  taxation,  and  there  is  jurisdiction  over  the  thing." 

In  Wilcox  V.  Ellis,  14  Kan.  588,  the  power  of  the  State  to  tax  a 
citizen  and  resident  of  Kansas,  on  mone^-  due  him  in  lUinois,  evidenced 
by  a  note  which  was  left  in  Illinois  for  collection,  was  denied,  the 
court  saying  (p.  603),  after  referring  to  the  maxim,  mob'dia  sequuntur 
personam  .•  — 

"  This  maxim  is  at  most  onl}'  a  legal  fiction  ;  and  Blackstone,  speak- 
ing of  legal  fictions,  says  :  '  This  maxim  is  invariably  observed,  that  no 
fiction  shall  extend  to  work  an  injur}',  its  proper  operation  being  to 
prevent  a  mischief,  or  remedy  an  inconvenience,  that  might  result  from 
the  general  rule  of  law.'  3  Blackstone  Com.  43.  Now,  as  the  State  of 
Illinois,  and  not  Kansas,  must  furnish  the  plaintiff  with  all  the  remedies 
that  he  may  have  for  the  enforcement  of  all  his  rights  connected  with 
said  notes,  debts,  etc.,  it  would  seem  more  just,  if  said  debt  is  to  be 
taxed  at  all,  that  the  State  of  Illinois,  and  not  Kansas,  should  tax  it, 
and  that  we  should  not  resort  to  legal  fictions  to  give  the  State  of 
Kansas  the  right  to  tax  it." 

The  same  doctrine  was  affirmed  in  Fisher  v.  Commissioners  of  Rush 
County,  19  Kan.  414,  and  again  in  Blain  v.  Irby,  25  Kan.  499,  501,  in 
which  the  court  said,  referring  to  promissory  notes  :  "  They  have  such 
an  independent  situs  that  they  may  be  taxed  where  they  are  situated." 

The  decisions  of  the  highest  courts  of  New  York,  in  which  State 
these  plaintiffs  reside,  are  to  the  same  effect.  In  People  v.  Trustees, 
48  N.  Y.  390,  397,  the  court  said  :  — 

"  That  the  furniture  in  the  mansion  and  the  mone}'  in  the  bank  were, 
under  these  provisions,  properly  assessable  to  the  relators  is  not  seri- 
ously disputed.  And  I  am  unable  to  see  why  the  money  due  upon  the 
land  contracts  must  not  be  assessed  in  the  same  way.  The  debts  due 
upon  these  contracts  are  personal  estate,  the  same  as  if  they  were  due 
upon  notes  or  bonds  ;  and  such  personal  estate  may  be  said  to  exist 
where  the  obligations  for  payment  are  held.  Notes,  bonds,  and  other 
contracts  for  the  payment  of  money  have  always  been  regarded  and 
treated  in  the  law  as  personal  property.  They  represent  the  debts 
secured  by  them.  They  are  the  subject  of  larcen}',  and  a  transfer  of 
them  transfers  the  debt.  If  this  kind  of  property  does  not  exist  where 
the  obligation  is  held,  where  does  i*  exist  ?  It  certainly  does  not  exist 
where  the  debtor  may  be  and  fellow  his  person.  And  while,  for  some 
purposes  in  the  law,  by  legal  fiction,  it  follows  the  person  of  the  cred» 


SECT.  II.]  2\E^V    OKLEANS    V.    STEMPEL.  255 

iter  and  exists  where  he  may  he.  yet  it  has  been  settled  that,  for  the 
pnrpose  of  taxation,  this  legal  fiction  does  not,  to  the  full  extent,  appl}', 
and  that  such  pro[)eity  belonging  to  a  non-resident  creditor  ma\-  be 
taxed  in  the  place  where  the  obligations  are  held  by  his  agent.  Hoyt 
V.  Commissioners  of  Taxes,  23  N.  Y.  238  ;  The  People  v.  Gardner,  51 
Barb.  352  ;  Catlin  v.  Hull,  21  Vt.  152." 

This  pro{)osition  was  reaffirmed  in  People  ex  rel.  v.  Smith,  88  N.  Y. 
576.  in  which  the  Court  of  Appeals  of  that  State  held  that  a  resident  of 
New  York  was  not  liable  to  taxation  on  moneys  loaned  in  the  States  of 
Wisconsin  and  Minnesota  on  notes  and  mortgages,  which  notes  and 
mortgages  were  held  in  tliose  States  for  collection  of  principal  and  in- 
terest and  reinvestment  of  the  funds,  it  ap[)earing  that  property  so 
situated  within  the  limits  of  those  States  was  there  subject  to  taxa- 
tion. See  also  Missouri  r.  St.  Louis  County  Court,  47  Mo.  594,  600; 
People  i\  Home  Insurance  Company,  28  Cal.  533  ;  Billinghurst  v.  Spink 
County,  5  S.  Dak.  84,  98  ;  In  re  Jefferson,  35  Minn.  215  ;  Poppleton 
V.  Yamhill  County,  18  Ore.  377  ;  Redmond  v.  Commissioners,  87  N.  C. 
122  ;  Finch  v.  York  County,  19  Neb.  50. 

With  reference  to  the  decisions  of  this  court,  it  may  be  said  that 
there  has  never  been  any  denial  of  the  power  of  a  State  to  tax  securi- 
ties  situated  as  these  are,  while  there  have  been  frequent  recognitions 
of  its  power  to  separate  for  purposes  of  taxation  the  situs  of  personal 
property  from  the  domicile  of  the  owner.  In  State  Tax  on  Foreign- 
held  Bonds,  15  Wall.  300,  it  was  held  that  while  the  taxing  power  of 
the  State  ma}-  extend  to  property  within  its  territorial  limits,  it  cannot 
to  that  which  is  outside  those  limits  ;  and,  therefore,  that  bonds  issued 
bj-  a  railroad  companv,  although  secured  by  a  mortgage  on  property 
within  the  State,  were  not  subject  to  taxation  while  in  the  possession 
of  their  owners  who  were  non-residents,  the  court  saying:  "We  are 
clear  that  the  tax  cannot  be  sustained  ;  that  the  bonds,  being  held  by 
non-residents  of  the  State,  are  only  property  in  their  hands,  and  that 
they  are  thus  beyond  the  jurisdiction  of  the  taxing  power  of  the  State." 
But  in  the  same  case,  on  i)age  323,  the  court  declared:  "It  is  un- 
doubtedl}'  true  that  the  actual  situs  of  personal  property  which  has  a 
visible  and  tangible  existence,  and  not  the  domicile  of  its  owner,  will, 
in  many  cases,  determine  the  State  in  which  it  may  be  taxed.  The 
same  thing  is  true  of  public  securities  consisting  of  State  bonds  and 
bonds  of  municipal  bodies,  and  circulating  notes  of  hanking  institu- 
tions. The  former,  by  general  usage,  have  acquired  the  character  of, 
and  are  treated  as,  property  in  the  place  where  they  are  found,  though 
removed  from  the  domicile  of  the  owner ;  the  latter  are  treated  and 
pass  as  money  wherever  they  are.  But  other  personal  propertj-,  con- 
sisting of  bonds,  mortgages,  and  debts  generally,  has  no  situs  indepen- 
dent of  the  domicile  of  the  owner,  and  certainly  can  have  none  where 
the  instruments,  as  in  the  present  case,  constituting  the  evidences  of 
debt,  are  not  separated  from  the  possession  of  the  owners." 

This  last  sentence,  properly  construed,  is  not  to  be  taken  as  a  denial 


256  NEW    OELEAIN'S    V.    STEMPEL.  [ciIAr.  TI. 

of  the  power  of  the  legislature  to  e.stal)lisU  an  independent  situs  for 
bonds  and  mortgages  when  those  properties  are  not  in  the  possession 
of  the  owner,  but  simply  that  the  fiction  of  law,  so  often  referred  to, 
declares  their  situs  to  be  that  of  the  domicile  of  the  owner,  a  declara- 
tion  which  the  legislature  has  no  power  to  disturb  when  in  fact  they 
are  in  his  possession.  It  was  held  in  that  case  that  a  statute  requiring 
the  railroad  company,  the  obligor  in  such  bonds,  to  pay  the  State  tax, 
and  authorizing  it  to  deduct  the  amount  of  such  taxation  from  the 
interest  due  by  the  terms  of  the  bond,  was,  as  to  non-residents,  a 
law  impairing  the  obligation  of  contracts.  The  same  proposition  was 
affirmed  in  Murray  r.  Ciiarleston,  96  U.  S.  432,  where  the  city  of 
Charleston  attempted  to  tax  its  obligatioc.s  held  by  non-residents  of 
the  State.  In  Tappan  ".  Merchants'  National  Bank,  19  Wall.  490,  the 
ruling  was,  that  altliough  shares  of  stock  in  national  banks  were  in  a 
certain  sense  intangible  and  incorporeal  personal  propert}',  the  law 
might  separate  them  from  the  persons  of  their  owners  for  purposes  of 
taxation,  and  give  them  a  situs  of  their  own.  See  also  Pullman's  Car 
Company  v.  Pennsylvania,  141  U.  S.  18,  22,  where  the  question  of  the 
separation  of  personal  propertj'  from  the  person  of  the  owner  for  pur- 
poses of  taxation  was  discussed  at  length  ;  as  also  the  case  of  Savings 
Society  v.  Multnomah  County,  169  U.  S.  421,  427,  in  which  a  statute 
of  Oregon  taxing  the  interest  of  a  mortgagee  in  real  estate  was  ad- 
judged valid,  although  the  owner  of  the  mortgage  was  a  non-resident. 
Nor  is  there  an3'thing  in  the  case  of  Kirtland  v.  Hotchkiss,  100  U.  S. 
491,  conflicting  with  these  decisions.  It  was  there  held  that  a  State 
might  tax  one  of  its  citizens  on  bonds  belonging  to  him,  although  such 
bonds  were  secured  b}-  mortgage  on  real  estate  situated  in  another 
State.  It  was  assumed  that  the  situs  of  such  intangible  property  as  a 
debt  evidenced  b^'  bond  was  at  the  domicile  of  the  owner.  There  was 
no  legislation  attempting  to  set  aside  that  ordinary  rule  m  respect  to 
the  matter  of  situs.  On  the  contrary,  the  legislature  of  the  State  of 
Connecticut,  from  which  the  case  came,  plainl3'  reaffirmed  the  rule,  and 
the  court  in  its  opinion  summed  up  the  case  in  these  words  (p.  499)  : 
"Whether  the  State  of  Connecticut  shall  measure  the  contribution 
which  persons  resident  within  its  jurisdiction  shall  make  b}'  wa}-  of 
taxes,  in  return  for  the  protection  it  affords  them,  by  the  value  of  the 
credits,  choses  in  action,  bonds  or  stocks  which  they  may  own  (other 
than  such  as  are  exempted  or  protected  from  taxation  under  the  Con- 
stitution and  laws  of  the  United  States)  is  a  matter  which  concerns 
only  the  people  of  that  State,  with  which  the  Federal  government  can- 
not rightfully  interfere." 

This  matter  of  situs  may  be  regarded  in  another  aspect.  In  the 
absence  of  statute,  bills  and  notes  are  treated  as  choses  in  action,  and 
are  not  subject  to  levy  and  sale  on  execution ;  but  by  the  statutes  of 
many  States  they  are  made  so  subject  to  seizure  and  sale  as  any  tan- 
gible personal  property.  1  Freeman  on  Executions,  s.  112;  4  Am.  & 
Eng.  E.  of  L.,  2d  ed.",  282;   11  Am.  &  Eng.  E.  of  L.,  2d  cd.,  623o 


SECT.  II.]  XEW    ORLEANS    V.    STEMPEL.  257 

Among  the  States  refei  red  to  in  these  authorities  as  having  statutes 
warranting  sucli  levy  and  sale  are  California,  Indiana,  Kentucky,  New 
York,  Tennessee,  Iowa,  and  Louisiana.  Brown  i\  Anderson,  4  Martin 
(N.  S.),  416,  affirmed  the  rightfulness  of  such  a  levy  and  sale.  In 
Fluker  v.  Bullard,  2  La.  Ann.  338,  it  was  held  tliat  if  a  note  was  not 
taken  into  the  actual  possession  of  the  sheriff,  a  sale  by  him  on  an 
execution  conveyed  no  title  on  the  purchaser,  the  court  sa3-ing  :  "In 
the  case  of  Simpson  r.  AUain,  it  was  held  that,  in  order  to  make  a 
valid  seizure  of  tangible  property,  it  is  necessar)'  that  the  sheriff  should 
take  the  property  levied  upon  into  actual  possession.  7  Rob.  504.  In 
the  case  of  Gobeau  r.  The  New  Orleans  &  Nashville  Railroad  Com- 
pany, the  same  doctrine  is  still  more  distinctly  announced.  The  court 
there  says  :  '  From  all  the  different  provisions  of  our  laws  above  re- 
ferred to,  can  it  be  controverted  that,  in  order  to  have  them  carried 
into  effect,  the  sheriff  must  necessaril}'  take  the  property  seized  into 
his  possession  ?  This  is  the  essence  of  the  seizure.  It  cannot  exist 
without  such  possession.'  6  Rob.  348.  It  is  clear,  under  these  au- 
thorities, that  the  sheriff  effected  no  seizure  of  the  note  in  controversy, 
and  consequenth'  his  subsequent  adjudication  of  it  conferred  no  title 
on  Bailey." 

The  same  doctrine  was  reaffirmed  in  Stockton  v.  Stanbrough,  3  La. 
Ann.  390.  Now,  if  property  can  have  such  a  situs  within  the  State  as 
to  be  subject  to  seizure  and  sale  on  execution,  it  would  seem  to  follow 
that  the  State  has  power  to  establish  a  like  situs  within  the  State  for 
purposes  of  taxation. 

It  has  also  been  held  that  a  note  mav  be  made  the  subject  of  seizure 
and  delivery  in  a  replevin  suit.  Graff  v.  Shannon,  7  Iowa,  508  ;  Smith 
V.  Eals,  81  Iowa,  235;  Pritchard  v.  Norwood,  155  Mass.  539. 

It  is  well  settled  that  bank  bills  and  municipal  bonds  are  in  such  a 
concrete  tangible  form  that  they  are  subject  to  taxation  where  found, 
irrespective  of  the  domicile  of  the  owner ;  are  subject  to  levy  and  sale 
on  execution,  and  to  seizure  and  delivers*  under  replevin  ;  and  yet  they 
are  but  promises  to  pay,  — evidences  of  existing  indebtedness.  Notes 
and  mortgages  are  of  the  same  nature  ;  and  while  the}'  may  not  have 
become  so  generall}'  recognized  as  tangible  personal  propert}',  yet  they 
have  such  a  concrete  form  that  we  see  no  reason  why  a  State  may  not 
declare  that  if  found  within  its  limits  the}'  shall  be  subject  to  taxation. 

It  follows  from  these  considerations  that 

The  decree  of  the  Circuit  Court  must  he  reversed  and  the  case 
remanded  for  farther  proceeding s} 

Harlan  and  Whitl,  JJ.,  dissenting. 

1  Ace.  Bristol  v.  Washington  County,  177  U.  S.  133;  Walker  v.  Jack,  88  Fed.  576; 
P.  w.  Home  Ins.  Co.,  29  Cal.  .033;  In  re  Jefferson,  35  Minn.  217;  3.  v.  Bentley,  23 
N.  J.  L.  532.     See  Herron  u.  Keeran,  59  Ind.  472.  — Ed. 


258  BLACKSTONE    V.    MILLER.  [CHAP.  II. 


BLACKSTONE  v.   MILLER. 
Supreme  Court  of  the  United  Stater.     1903. 

[Reported  188  U.  S.  189.] 

Holmes,  J.  This  is  a  writ  of  error  to  tlie  Surrogate's  Court  of  the 
county  of  New  York.  It  is  brought  to  review  a  decree  of  the  court, 
sustained  by  the  Appelhite  Division  of  th*e  Supreme  Court,  69  App. 
Div.  127,  and  by  tlie  Court  of  Appeals,  171  N.  Y.  682,  levying  a  tax 
on  the  transfer  by  will  of  certain  property  of  Timothy  B.  Blackstone, 
the  testator,  who  died  domiciled  in  Illinois.  The  property  consisted  of 
a  debt  of  $10,692.21,  due  to  the  deceased  by  a  firm,  and  of  the  net  sum 
of  $4,843,456.72,  held  on  a  deposit  account  by  the  United  States  Trust 
Company  of  New  York.  The  objection  was  taken  seasonably  upon  the 
record  that  the  transfer  of  this  property  could  not  be  taxed  in  New  York 
consistently  with  the  Constitution  of  the  United  States. 

The  deposit  in  question  represented  the  proceeds  of  railroad  stock 
sold  to  a  syndicate  and  handed  to  the  Trust  Company,  which,  by  arrange- 
ment with  the  testator,  held  the  proceeds  subject  to  his  order,  paying 
interest  in  the  meantime.  Five  days'  notice  of  withdrawal  was  required, 
and  if  a  draft  was  made  upon  the  company,  it  gave  its  check  upon  one 
of  its  banks  of  deposit.  The  fund  had  lieen  held  in  this  way  from 
March  31,  1899,  until  the  testator's  death  on  May  26,  1900.  It  is 
probable,  of  course,  that  he  did  not  intend  to  leave  the  fund  there 
forever  and  that  he  was  looking  out  for  investments,  but  he  had  not 
found  them  when  he  died.  The  tax  is  levied  under  a  statute  impos- 
ing a  tax  "upon  the  transfer  of  any  property,  real  or  personal.  .  .  . 
2.  When  the  transfer  is  by  will  or  intestate  law,  of  property  within  the 
State,  and  the  decedent  was  a  non-resident  of  the  State  at  the  time  of 
his  death."  Laws  of  1896,  c.  908,  §  220,  amended,  Laws  of  1897, 
c.  284 ;  3  Birdseye's  Stat.  3d  ed.  1901,  p.  3592.  The  whole  succession 
has  been  taxed  in  Illinois,  the  New  York  deposit  being  included  in  the 
appraisal  of  the  estate.  It  is  objected  to  the  New  York  tax  that  the 
property  was  not  witliin  the  State,  and  that  the  courts  of  New  York 
had  no  jurisdiction  ;  that  if  the  property  was  within  the  State  it  was 
only  transitorily  there,  Hays  v.  Pacific  Mail  Steamship  Co.,  17  How. 
596,  599,  600,  that  the  tax  impairs  the  obligation  of  contracts,  that  it 
denies  full  faith  and  credit  to  the  judgment  taxing  the  inheritance  in 
Illinois,  that  it  deprives  the  executrix  and  legatees  of  privileges  and 
immunities  of  citizens  of  the  State  of  New  York,  and  that  it  is  contrary 
to  the  Fourteenth  Amendment. 

In  view  of  the  State  decisions  it  must  be  assumed  that  the  New  York 
statute  is  intended  to  reach  the  transfer  of  this  property  if  it  can  be 
reached.  New  Orleans  v.  Stempel,  175  U.S.  309,  316;  Morley  i: 
Lake  Shore  &  Michigan  Southern  Railway  Co.,  146  U.  S.  162,  166. 
We  also  must  take  it  to  have  been  found  that  the  property  was  not  in 


SECT.  II.]  BI.ACKSTONE     l\     MILLER.  259 

transitu  in  such  a  sense  as  to  withdraw  it  from  the  power  of  the  State, 
if  otherwise  the  right  to  tax  the  transfer  belonged  to  the  State.  The 
property  was  delayed  within  the  jurisdiction  of  New  York  an  indefinite 
time,  which  had  lasted  for  more  than  a  year,  so  tliat  this  finding  at  least 
was  justified.  Kelley  v.  Rhoads,  188  U.  S.  1,  and  Diamond  Match  Co. 
V.  Village  of  Ontonagon,  188  U.  S.  84,  present  term.  Both  parties  agree 
with  the  plain  words  of  the  law  that  the  tax  is  a  tax  upon  the  transfer, 
not  upon  the  deposit,  and  we  need  spend  no  time  upon  that.  Therefore 
the  naked  question  is  whether  the  State  has  a  right  to  tax  the  transfer 
by  will  of  such  deposit. 

The  answer  is  somewhat  obscured  by  the  superficial  fact  that  New 
York,  like  most  other  States,  recognizes  the  law  of  the  domicil  as  the 
law  determining  the  right  of  universal  succession.  The  domicil,  natu- 
rally, must  control  a  succession  of  that  kind.  Universal  succession  is 
the  artificial  continuance  of  the  person  of  a  deceased  by  an  executor, 
heir,  or  the  like,  so  far  as  succession  to  rights  and  obligations  is  con- 
cerned. It  is  a  fiction,  the  historical  origin  of  which  is  familiar  to 
scholars,  and  it  is  this  fiction  that  gives  whatever  meaning  it  has  to  the 
saying  mobilia  sequuntar  personam.  But  being  a  fiction  it  is  not  al- 
lowed to  ol)scure  the  facts,  when  the  facts  become  important.  To  a 
considerable,  although  more  or  less  varying,  extent,  the  succession  de- 
termined by  the  law  of  the  domicil  is  recognized  in  other  jurisdictions. 
But  it  hardly  needs  illustration  to  show  that  the  recognition  is  limited 
by  the  policy  of  the  local  law.  Ancillary  administrators  pay  the  local 
debts  before  turning  over  the  residue  to  be  distributed,  or  distributing 
it  themselves,  according  to  the  rules  of  the  domicil.  The  title  of  the 
principal  administrator,  or  of  a  foreign  assignee  in  bankruptcy,  another 
type  of  universal  succession,  is  admitted  in  but  a  limited  way  or  not  at 
all.  See  Crapo  v.  Kelly,  16  Wall.  610;  Chipman  v.  Manufacturers' 
National  Bank,   lo6  Mass.  147,   148,   149. 

To  come  closer  to  the  point,  no  one  doubts  that  succession  to  a  tan- 
gible chattel  may  be  taxed  wherever  the  property  is  found,  and  none 
the  less  that  the  law  of  the  situs  accepts  its  rules  of  succession  from  the 
law  of  the  domicil,  or  that  by  the  law  of  the  domicil  the  chattel  is  part 
of  a  universitas  and  is  taken  into  account  again  in  the  succession  tax 
there.  Eidman  v.  Martinez,  184  U.  S.  578,  586,  587,  592.  See  Mager 
r.  Grima.  8  How.  490,  493  ;  Coe  v.  Errol,  116  U.  S.  517,  524  ;  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  22;  Magoun  v.  Illinois 
Trust  &  Savings  Bank,  170  U.  S.  283;  New  Orleans  v.  Stempel,  175 
U.  S.  309  ;  Bristol  /'.Washington  County,  177  U.  S.  133;  and  for  state 
decisions  Matter  of  Estate  of  Romaine,  127  N.  Y.  80;  Callahan  v. 
Woodbridge,  171  Mass.  593;  Greves  v.  Shaw,  173  Mass.  205;  Allen 
V.  National  State  Bank,  92  Md  509. 

No  doubt  this  power  on  the  part  of  two  States  to  tax  on  different  and 
more  or  less  inconsistent  principles,  leads  to  some  hardship.  It  may 
be  regretted,  also,  that  one  and  the  same  State  should  be  seen  taxing 
on  the  one  hand  according  to  tiie  fact  of  power,  and  on  the  other,  at 


260  BLACKSTO^TE    V.    MILLER.  [cHAr.  II. 

the  same  time,  according  to  the  fiction  that,  in  successions  after  death, 
mobilia  sequuntur  personam  and  domicil  governs  the  whole.  But 
these  inconsistencies  infringe  no  rule  of  constitutional  law.  Coe  v. 
p:rrol,   UG  U.  S.  517,  524;  Knowlton  v.  Moore,   178  U.  S.  41. 

The  question,  then,  is  narrowed  to  whether  a  distinction  is  to  be  taken 
between  tangible  chattels  and  the  deposit  in  this  case.  There  is  no 
doubt  that  courts  in  New  York  and  elsewhere  have  been  loath  to  recog- 
nize a  distinction  for  taxing  pui-poses  between  what  commonly  is  called 
money  in  the  bank  and  actual  coin  in  the  pocket.  The  practical  simi- 
larity more  or  less  has  obliterated  the  legal  difference.  Matter  of 
Houdayer,  150  N.  Y.  37  ;  New  Orleans  v.  Stempel,  175  U.  S.  309,  316  ; 
City  National  Bank  i\  Charles  Baker  Co..  180  Mass.  40,  42.  In  view 
of  these  cases,  and  the  decision  in  the  present  case,  which  followed 
them,  a  not  very  successful  attempt  was  made  to  show  that  by  reason 
of  tlie  facts  which  we  have  mentioned,  and  others,  the  deposit  here  was 
unlike  an  ordinary  deposit  in  a  bank.  We  shall  not  stop  to  discuss 
this  aspect  of  the  case,  because  we  prefer  to  decide  it  upon  a  broader 
Tiew. 

If  the  transfer  of  the  deposit  necessarily  depends  upon  and  involves 
the  law  of  New  York  for  its  exercise,  or,  in  other  words,  if  the  transfer 
is  subject  to  the  power  v^f  the  State  of  New  York,  then  New  York  may 
sul)ject  the  transfer  to  a  tax.  United  States  r.  Perkins,  163  U.  S.  625, 
628,  629  ;  McCulloch  v.  Maryland,  4  Wheat.  316,  429.  But  it  is  plain 
that  the  transfer  does  depend  upon  the  law  of  New  York,  not  because 
of  anv  theoretical  speculation  concerning  the  whereabouts  of  the  debt, 
but  because  of  the  practical  fact  of  its  power  over  the  person  of  the 
debtor.  The  principle  has  been  recognized  by  this  court  with  regard 
to  garnishments  of  a  domestic  debtor  of  an  absent  defendant.  Chicago^ 
Rock  Island  &  Pacific  Ry.  Co.  v.  Sturm,  174  U.  S.  710.  See  Wyman  v. 
Halstead,  109  U.  S.  654.  What  gives  the  debt  validity?  Nothing  but 
the  fact  that  the  law  of  the  place  where  the  debtor  is  will  make  him  |)ay. 
It  does  not  matter  that  the  law  would  not  need  to  be  invoked  in  the 
particular  case.  Most  of  us  do  not  commit  crimes,  yet  we  nevertheless 
are  sul)ject  to  the  criminal  law,  and  it  affords  one  of  the  motives  for  our 
conduct.  So  again,  what  enables  any  other  than  the  very  creditor  in 
proper  person  to  collect  the  debt?  The  law  of  the  same  place.  To  test 
it,  suppose  that  New  York  should  turn  back  the  current  of  legislation 
and  extend  to  debts  the  rule  still  applied  to  slander  that  dctin  personalis 
moritur  cum  persona,  and  should  provide  that  all  debts  hereafter  con- 
tracted in  New  York  and  payable  there  should  be  extinguished  by  the 
death  of  either  party.  Leaving  constitutional  considerations  on  one 
side,  it  is  plain  that  the  right  of  the  foreign  creditor  would  be  gone. 

Power  over  the  person  of  the  debtor  confers  jurisdiction,  we  repeat. 
And  this  being  so  we  perceive  no  better  reason  for  denying  the  right  of 
New  York  to  impose  a  succession  tax  on  debts  owed  by  its  citizens  than 
upon  tangible  chattels  found  within  the  State  at  the  time  of  the  death. 
The  maxim  mohilia  sequuntur  ptersonam  has  no  more  truth  in  the  one 


SECT.  II.]  BLACKSTOXE  T.  MILLEK.  261 

case  than  in  the  other.     When  logic  and  the  polic}-  of  a  State  conflict 
with  a  fiction  due  to  historical  tradition,  the  fiction  must  give  way. 

There  is  no  conflict  between  our  views  and  the  point  decided  in  the 
case  reported  under  the  name  of  State  Tax  on  Foreign  Held  Bonds, 
15  Wall.  300.  The  taxation  in  that  case  was  on  the  interest  on  bonds 
held  out  of  the  State.  Bonds  and  negotiable  instruments  are  more  than 
merely  evidences  of  debt.  The  debt  is  inseparable  from  the  paper  which 
declares  and  constitutes  it,  by  a  tradition  which  comes  down  from  more 
archaic  conditions.  Bacon  r.  Hooker,  177  Mass.  335,337.  Therefore, 
considering  only  the  place  of  the  property,  it  was  held  that  bonds  held 
out  of  the  State  could  not  be  reached.  The  decision  has  been  cut  down 
to  its  precise  point  by  later  cases.  Savings  &  Loan  Society  v.  Multno- 
mah County,  169  U.  S.  421,  428;  New  Orleans  v.  Stempel,  175  U.  S. 
309,  319,  320. 

In  the  case  at  bar  the  law  imposing  the  tax  was  in  force  before  the 
deposit  was  made,  and  did  not  impair  the  obligation  of  the  contract,  if 
a  tax  otherwise  lawful  ever  can  be  said  to  have  that  eff'ect.  Pinney  r. 
Nelson,  183  U.  S.  144,  147.  The  fact  that  two  States,  dealing  each  with 
its  own  law  of  succession,  both  of  which  the  plaintiff  in  error  has  to  in- 
voke for  her  rights,  have  taxed  the  right  which  they  respectively  confer, 
gives  no  cause  for  complaint  on  constitutional  grounds.  Coe  r.  Pyrrol, 
UG  U.  S.  517,  524;  Knowlton  v.  Moore,  178  U.  S.  53.  The  universal 
succession  is  taxed  in  one  State,  the  singular  succession  is  taxed  in 
another.  The  plaintiff  has  to  make  out  her  right  under  both  in  order 
to  get  the  money.  See  Adams  r.  Batchclder,  173  Mass.  258.  The 
same  considerations  answer  the  argument  that  due  faith  and  credit 
are  not  given  to  the  judgment  in  Illinois.  The  tax  does  not  deprive 
the  plaintiff"  in  error  of  any  of  the  privileges  and  immunities  of  the 
citizens  of  New  York.  It  is  no  such  deprivation  that  if  she  had 
lived  in  New  York  the  tax  on  the  transfer  of  the  deposit  would  have 
been  part  of  the  tax  on  the  inheritance  as  a  whole.  See  Mager  r.  Grima, 
8  How.  490 ;  Brown  r.  Houston,  114  U.  S.  622,  635  ;  Wallace  v.  Myers, 
38  Fed.  Rep.  184.  It  does  not  violate  the  Fourteenth  Amendment. 
See  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283.  Matters 
of  state  procedure  and  the  correctness  of  the  New  York  decree  or  judg- 
ment, apart  from  specific  constitutional  objections,  are  not  open  here. 
As  we  have  said,  the  question  whether  the  property  was  to  be  regarded 
as  in  transitu,  if  material,  must  be  regarded  as  found  against  the  plain- 
tiff" in  error. 

Decree  affirmed. 

Mr.  Justice  White  dissents. 


262  UKlOxX    TKAXSIT    CO.    V.    KENTUCKY.  [ CHAP.  II. 


UNION  TRANSIT  CO.  v.  KENTUCKY. 

SuPHKME  Court  of  the  United  States.     1905. 

[Reported  199  U.  S.  194.] 

Brown,  J.  In  this  case  the  question  is  directh'  presented  whether 
a  corporation  organized  under  the  laws  of  Kentucky  is  subject  to  taxa- 
tion upon  its  tangible  personal  propeity,  permanently  located  in  other 
States,  and  employed  there  in  the  prosecution  of  its  business.  Such 
taxation  is  charged  to  be  a  violation  of  the  due  process  of  law  clause  of 
the  Fourteenth  Amendment. 

Section  4020  of  the  Kentucky  statutes,  under  which  this  assessment 
was  made,  provides  that  "  AH  rcial  and  peisonal  estate  within  this 
State,  and  all  personal  estate  of  persons  residing  in  this  State,  and  of  all 
corporations  organized  under  the  laws  of  this  State,  whether  the  prop- 
erty be  in  or  out  of  this  State,  .  .  .  shall  be  subject  to  taxation,  unless 
the  same  be  exempt  from  taxation  by  the  Constitution,  and  shall  be 
assessed  at  its  fair  cash  value,  estimated  at  tlie  price  it  would  bring  at 
a  fair  voluntary  sale." 

That  the  property  taxed  is  within  this  description  is  beyond  contro- 
versy. The  constitutionality  of  the  section  was  attacked  not  only  upon 
the  ground  that  it  denied  to  the  Transit  Company  due  process  of  law, 
but  also  the  equal  protection  of  the  laws,  in  the  fuct  that  railroad  com- 
panies were  only  taxed  upon  the  value  of  their  rolling  stock  used  within 
the  State  which  was  determined  by  the  proportion  wliich  the  numijer  of 
miles  of  the  railroad  in  the  State  bears  to  the  whole  number  of  miles 
operated  by  the  company. 

The  power  of  taxation,  indispensable  to  the  existence  of  every  civil- 
ized government,  is  exercised  upon  the  assumption  of  an  equivalent 
rendered  to  the  taxpayer  in  the  protection  of  his  pei'son  and  property,  in 
adding  to  the  value  of  such  property,  or  in  the  creation  and  maintenance 
of  public  conveniences  in  which  he  shares,  such,  for  instance,  as  roads, 
bridges,  sidewalks,  pavements,  and  schools  for  the  education  of  his  chil- 
dren. If  the  taxing  power  be  in  no  position  to  render  these  services,  or 
otherwise  to  benefit  the  person  or  property  taxed,  and  such  property  be 
wholly  within  the  taxing  power  of  another  State,  to  which  it  may  be  said 
to  owe  an  allegiance  and  to  which  it  looks  for  protection,  the  taxation, 
of  such  property  within  the  domicil  of  the  owner  partakes  rather  of  the 
nature  of  an  extortion  than  a  tax,  and  has  been  repeatedly  held  by  this 
court  to  be  beyond  the  power  of  the  legislature  and  a  taking  of  jjroperty 
without  due  process  of  law.  Railroad  Compan}-  r.  Jackson,  7  Wall. 
262;  State  Tax  on  Foreign-hold  Bonds,  15  Wall.  300;  Tappan  v. 
Merchants'  National  Bank,  19  Wall.  490,  499;  Delaware  &c.  R.  R. 
Co.  V.  Pennsylvania,  198  U.  S.  341,  358.  In  Chicago  &c.  R.  R.  Co.  c. 
Chicago,  166  U.  S.  226,  it  was  held,  after  full  consideration,  that  the 
taking  of  private  property  without  compensatiou  was  a  denial  of  due 


SECT.  II.]  rXIOX    TKAXSIT    CO.    V.    KENTUCKY.  263 

process  within  the  Fourteenth  Amendment.  See  also  Davidsons.  New 
Orleans,  96  U.  S.  1)7,  102  ;  Missouri  Pacific  Railway  v.  Nebraska,  164 
U.  8.  403,  417  ;  iMount  Hope  Cemeteiy  c.  Boston,  158  Mass.  509,  519. 

Most  modern  legislation  upon  this  subject  has  been  directed  (1)  to 
the  requirement  that  every  citizen  sliall  disclose  ihe  amount  of  his  prop- 
erty subject  to  taxation  and  shall  contribute  in  proportion  to  such 
amount ;  and  (2)  to  tlie  voidanceof  double  taxation.  As  said  by  Adam 
Smith  in  his  "  Wealth  of  Nations,"  Book  V.,  Ch.  2,  Pt.  2,  "  the  sub- 
jects of  every  State  ought  to  contribute  towards  the  support  of  the  gov- 
ernment as  nearly  as  possible  in  proportion  to  their  res[;ective  al)ilities  ; 
that  is,  in  proportion  to  the  revenue  which  they  respectively  enjoy 
under  the  protection  of  the  State.  The  ex[)ense  of  government  to  the 
individuals  of  a  great  nation  is  like  the  expense  of  management  to  the 
joint  tenants  of  a  great  estate,  who  are  all  obliged  to  contribute  in  pro- 
portion to  their  respective  interest  in  the  estate.  In  the  observation 
or  neglect  of  this  maxim  consists  what  is  called  equality  or  inequality 
of  taxation." 

But  notwithstanding  the  rule  of  uniformity  lying  at  the  basis  of 
every  just  svstem  of  taxation,  there  are  doubtless  many  individual 
oases  where  the  weight  of  a  tax  falls  unequally  upon  the  owners  of 
the  property  taxed.  This  is  almost  unavoidable  under  every  system 
of  direct  taxation.  But  the  tax  is  not  rendered  illegal  by  such  discrim- 
ination. Thus  ever}'  citizen  is  bound  to  pay  his  proportion  of  a 
school  tax,  though  he  have  no  children  ;  of  a  police  tax,  though  he  have 
no  buildings  or  personal  property  to  be  guarded  ;  or  of  a  road  tax, 
though  he  never  use  the  road.  In  other  words  a  general  tax  cannot  be 
dissected  to  show  that,  as  to  certain  constituent  parts,  the  taxpayer  re- 
ceives no  benefit.  Even  in  case  of  special  assessments  imposed  for  the 
impiovement  of  property  within  certain  limits,  the  fact  that  it  is  ex- 
tremely doubtful  whether  a  particular  lot  can  receive  any  benefit  from 
the  improvement  does  not  invalidate  the  tax  with  respect  to  such  lot. 
Kelly  V.  Pittsburgh  104  U.  S.  78 ;  Ames])ury  Naii  Factory  Co.  v. 
Weed,  17  Mass.  53;  Thomas  v.  Gay,  169  U.  S.  264;  Louisville  «&;c. 
R.  R.  Co.  V.  Barber  Asphalt  Co.  197  U.  S.  430.  Subject  to  these  in- 
dividual exceptions,  the  rule  is  that  in  classifying  property  for  taxation 
some  benefit  to  the  property  taxed  is  a  controlling  consideration,  and  a 
plain  abuse  of  this  power  will  sometimes  justify  a  judicial  interference. 
Norwood  V.  Baker,  172  U.  S.  269.  It  is  often  said  protection  and 
payment  of  taxes  are  correlative  obligations. 

It  is  also  essential  to  the  validity  of  a  tax  that  the  property  shall  be 
within  the  territorial  jurisdiction  of  the  taxing  power.  Not  onl}'  is 
the  operation  of  State  laws  limited  to  persons  and  property  within  the 
boundaries  of  the  State,  but  property  which  is  v/hollv  and  exclusively 
within  the  jurisdiction  of  another  State,  receives  none  of  the  protec- 
tion for  whicli  the  tax  is  .sup|)oso(l  to  be  the  cf)mpensation.  This  rule 
receives  its  most  familiar  ilhistralion  in  tlic  cases  of  land  which,  to 
be  taxable,  must  be  within  the  limits  of  the  State.     Indeed,  we  know 


264 


UNION    TlliVNSIT    CO.    V.    KENTUCKY.  [CHAP.  II. 


of  no  case  where  a  legislature  has  assumed  to  impose  a  tax  upon  land 
within  the  jurisdiction  of  another  State,  much  less  where  sucli  action 
has  been  detended  by  any  court.  It  is  said  by  this  court  in  the 
Foreign-held  Bond  Case,  "^15  Wall.  300,  319,  that  no  adjudication 
should  be  necessary  to  establish  so  obvious  a  proposition  as  tliat 
property  Iving  beyond  the  jurisdiction  of  a  State  is  not  a  subject 
upon  which  her  taxing  power  can  be  legitimately  exercised. 

The  aronmcnt  against  the  taxal)ility  of  land  within  the  jurisdiction 
of  another  State  applies  with  equal  cogency  to  tangible  personal  prop- 
erty beyond  the  jurisdiction.  It  is  not  only  beyond  the  sovereignty  of 
the  taxing  State,  but  does  not  and  cannot  receive  protection  under  its 
laws.  True,  a  resident  owner  may  receive  an  income  from  such 
property,  but  the  same  may  be  said  of  real  estate  within  a  foreign 
jurisdiction.  Whatever  be  the  rights  of  the  State  with  respect 
to  tiie  taxation  of  such  income,  it  is  clearly  beyond  its  power  to  tax 
the  land  from  which  the  income  is  derived.  As  we  said  in  Louisville 
&c.  Ferry  Co.  ^^  Kentucky,  188  U.S.,  385,  396:  "While  the  mode, 
form,  and  extent  of  taxation  are,  speaking  generally,  limited  only  by 
the  wisdom  of  the  legislature,  that  power  is  limited  by  principle  in- 
hering in  the  very  nature  of  constitutional  government,  namely,  tliat 
the  taxation  imposed  must  have  relation  to  a  subject  within  the  jurisdic- 
tion of  the  taxing  government."  See  also  McCuUoch  r.  Maryland,  4 
Wheat.  316,  429;  Hays  v.  Pacific  Mail  S.  S.  Co.,  17  How.  596,  599  ; 
St.  Louis  /•.  Ferry  Co.,  11  Wall.  423,  429,  431  ;  Morgan  v.  Parluun, 
16  Wall.  471,  476. 

Respecting  this,  there  is  an  obvious  distinction  between  the  tanoible 
and  intangible  property,  in  the  fact  that  the  latter  is  held  secretly  ; 
that  there  is  no  method  by  which  its  existence  or  ownership  can  be 
ascertained  in  the  State  of  its  situs,  except  perhaps  in  the  case  of 
mortgages  or  shares  of  stock.  So  if  the  owner  be  discovered,  there  is 
no  way  by  which  he  can  be  reached  by  process  in  a  State  other  than 
that  of  his  domicil,  or  the  collection  of  the  tax  otherwise  enforced. 
In  this  class  of  cases  the  tendency  of  modern  authorities  is  to  apply  the 
maxim  mohiliu  sequuntur  personam,  and  to  hold  that  the  property  may 
be  taxed  at  the  domicil  of  the  owner  as  the  real  situs  of  the  debt,  and 
also,  more  particularly  in  the  case  of  mortgages,  in  the  State  where 
the  property  is  retained.  Such  has  been  the  repeated  rulings  of  this 
court.  Tappan  v.  Merchants'  National  Bank.  19  Wall.  490;  Kirtland 
V.  Hotchkiss,  100  U.  S.  491  ;  Bonaparte  v.  Tax  Court.  104  U.  S.  592; 
Sturgis  V.  Carter,  114  U.  S.  511;  Kidd  v.  Alabama,  188  U.  S.  730; 
Blackstone  r.  Miller,  188  U.  S.  189. 

If  this  occasionally  results  in  double  taxation,  it  much  oftener  happens 
that  this  class  of  property  escapes  altogether.  In  the  case  of  intangible 
property,  the  law  does  not  look  for  absolute  equality,  but  to  the  much 
more  practical  consideration  of  collecting  the  tax  upon  such  property, 
either  in  the  State  of  the  domicil  or  the  situs.  Of  course,  we  do  not 
enter  into  a  consideration  of  the  question,  so  much  discussed  by  polit- 


SECT,  n.]  u^:iox  tkansit  co.   r.  kextucky.  20.") 

ical  economists,  of  the  double  taxation  involved  in  taxing  the  property 
from  which  these  securities  arise,  and  also  the  burdens  upon  such  prop- 
erty, such  as  mortgages,  shares  of  stock  and  the  like  —  the  securities 
themselves. 

The  arguments  in  favor  of  the  taxation  of  intangible  property  at  the 
domicil  of  tlie  owner  have  no  application  to  tangible  property.  The 
fact  that  sucli  property  is  visible,  easily  found  and  difficult  to  conceal, 
and  the  tax  readih'  collectible,  is  so  cogent  an  argument  for  its  taxa- 
tion at  its  situs,  that  of  late  there  is  a  general  consensus  of  opinion 
that  it  is  taxable  in  the  State  where  it  is  permanently  located  and  em- 
ployed, and  where  it  receives  its  entire  protection,  irrespective  of  the 
domicil  of  the  owner.  We  have,  ourselves,  held  in  a  number  of  cases 
that  such  property  permanently  located  in  a  State  other  than  that  of 
its  owner  is  taxable  there.  Brown  r.  Houston,  114  U.  S.  622  ;  Coe  v. 
Errol,  116  U.  S.  517  ;  Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S.  18  ; 
Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530  :  Rail- 
road Company  r.  Peniston.  18  Wall.  5  ;  American  Refrigerator  Transit 
Company  v.  Hall.  174  U.  S.  70;  Pittsburgh  Coal  Company  r.  Bates, 
156  U.  S.  577  ;  Old  Dominion  Steamship  Company  v.  Virginia,  198 
U.  8.  299.  We  have  also  held  that,  if  a  corporation  be  engaged  in 
running  railroad  cars  into,  through,  and  out  of  the  State,  and  having  at 
all  times  a  large  number  of  cars  within  the  State,  it  may  be  taxed  b\' 
taking  as  the  basis  of  assessment  such  proportion  of  its  capital  stock  as 
the  number  of  miles  of  railroad  over  which  its  cars  are  run  within  the 
State  bears  to  the  whole  number  of  miles  in  all  the  States  over  which 
its  cars  are  run.     Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S.  18. 

There  are  doubtless  cases  in  the  State  reports  announcing  the  prin- 
ciple that  the  ancient  maxim  of  rnobiUa  seqiiHntu7-  personam  still 
applies  to  personal  property,  and  that  it  may  be  taxed  at  the  domicil 
of  the  owner,  but  upon  examination  the}'  all  or  nearly  all  relate  to 
intangible  property,  such  as  stocks,  bonds,  notes,  and  other  choses  in 
action.  We  are  cited  to  none  applying  this  rule  to  tangible  property, 
and  after  a  careful  examination  have  not  been  able  to  find  anv  wherein 
the  question  is  squarely  presented,  unless  it  be  that  of  Wheaton  r. 
Mickel,  63  N.  J.  Law,  525,  where  a  resident  of  New  Jersey  was  taxed 
for  certain  coastwise  and  seagoing  vessels  located  in  Pennsylvania.  It 
did  not  ap[)ear,  however,  that  they  were  permanently  located  there. 
The  case  turned  upon  the  construction  of  a  State  statute,  and  the  ques- 
tion of  constitutionality  was  not  raised.  If  there  are  an}' other  cases 
holding  that  the  maxim  ajjplies  to  tangible  personal  property,  they  are 
wholly  exceptional,  and  were  decided  at  a  time  when  personal  property 
was  comparatively  of  small  amount,  and  consisted  principally  of  stocks 
in  trade,  horses,  cattle,  vehicles,  and  vessels  engaged  in  navigation. 
But  in  view  of  the  enormous  increase  of  such  property  since  the  in- 
troduction of  railways  and  the  growth  of  manufactures,  the  tendency 
has  been  in  recent  years  to  treat  it  as  having  a  situs  of  its  own  for 
the  purpose  of  taxation,   and  correlatively  to  exempt  at  the  domicil  of 


2G6  r^'IOX    TKA2v'SIT    CO.    V.    KENTUCKY.  [ciIAP.  II. 

Its  owner.  The  cases  in  the  State  reports  upon  this  subject  usually 
turn  upon  the  construction  of  local  statutes  granting  or  withholding  the 
right  to  tax  extra-territorial  property,  and  do  not  involve  the  constitu- 
tional principle  here  invoiced.  Many  of  them,  such,  for  instance,  as 
Blood  V.  Sayre,  17  Vt.  609;  Preston  v.  Boston,  12  Picliering,  7; 
Pease  i7.  Whitney,  8  :\rass.  93;  Gray  v.  Kettel,  12  Mass.  161,  turn 
upon  the  taxabiUty  of  property  where  the  owner  is  located  in  one, 
and  the  property  in  another,  of  two  jurisdictions  within  the  same  Stale, 
sometimes  even  involving  double  taxation,  and  are  not  in  point  here. 

One  of  the  most  valuable  of  the  State  cases  is  that  of  Hoyt  v. 
Commissioners  of  Taxes,  23  N.  Y.  224,  where,  under  the  New  York 
statute,  it  was  held  that  the  tangible  property  of  a  resident  actually 
situated  in  another  State  or  country  was  not  to  be  included  in  the  as- 
sessment against  him.  The  statute  declared  that  "all  lands  and  all 
personal  estate  witliin  this  State  "  were  liable  for  taxation,  and  it  was 
said  in  a  most  instructive  opinion  by  Chief  Justice  Comstock  that  the 
language  could  not  be  obscured  by  the  introduction  of  a  legal  fiction 
about  the  situs  of  personal  estate.  It  was  said  that  tliis  fiction  involved 
the  necessary  consequence  that  "  goods  and  chattels  actually  within 
this  State  are  not  here  in  any  legal  sense,  or  for  any  legal  purpose,  if 
the  owner  resides  abroad ;  "  and  that  the  maxim  mobilia  sequuntur 
personam  may  only  be  resorted  to  when  convenience  and  justice  so  re- 
quire. The  proper  use  of  legal  fiction  is  to  prevent  injustice,  accord- 
ino-  to  the  maxim  '■'■in  fictions,  juris  semper  mquitas  existat"  See 
Eidman  v.  Martinez,  184  U.  S.  578;  Blackstone  v.  Miller,  188  U.  S. 
189,  206.  "  No  fiction,"  says  Blackstone,  "shall  extend  to  work  an 
injury  ;  its  proper  operation  being  to  prevent  a  mischief  or  remedy  an 
inconvenience,  which  might  result  from  a  general  rule  of  law."  The 
opinion  argues  with  great  force  against  the  injustice  of  taxing  extra- 
territorial property,  when  it  is  also  taxable  in  the  State  where  it  is  lo- 
cated. Similar  cases  to  the  same  effect  are  People  v.  Smith,  88  N.  Y. 
576  ;  City  of  New  Albany  v.  Meekin,  3  Indiana,  481  ;  Wilkey  v.  City  of 
Pekin,  19  Illinois,  160  ;  Johnson  v.  Lexington,  14  B.  Monroe,  521  ; 
Cathn  V.  Hull,  21  Vermont,  152  ;  Nashua  Bank  v.  Nashua,  46  N.  H. 
389. 

In  Weaver's  Estate  t\  State,  110  Iowa,  328,  it  was  held  by  the  Su- 
preme Court  of  Iowa  that  a  herd  of  cattle  within  the  State  of  JNIis- 
souri  belonging  to  a  resident  of  Iowa,  was  not  subject  to  an 
inheritance  tax  upon  his  decease.  In  Commonwealth  v.  American 
Dredging  Company,  122  Penna.  St.  386,  it  was  held  that  a  Penn- 
sylvania corporation  was  taxable  in  respect  to  certain  dredges 
and  other  similar  vessels  which  were  built,  but  not  permanently 
retained  outside  of  the  state.  It  was  said  that  the  non-taxability  of 
tangible  personal  property  located  permanently  outside  of  the  State 
was  not  ' '  because  of  the  technical  principle  that  the  situs  of  personal 
property  is  where  the  domicil  of  the  owner  is  found.  This  rule  is 
doubtless  true  as  to  intangible  property,  sucn  as  bonds,  mortgages,  and 


s::cT.  II.]  u>iox  tkax'sit  co.   v.  Kentucky.  2G7 

other  evidences  of  debt.  But  the  better  opinion  seems  to  be  that  it 
does  not  hold  in  the  case  of  visible  tangible  personal  property  perma- 
nently located  in  another  State.  In  such  cases  it  is  taxable  within 
the  jurisdiction  where  found,  and  is  exempt  at  the  domicil  of  the 
owner."  The  property  in  that  case,  however,  was  held  not  to  be  per- 
manently outside  of  the  State,  and  therelbre  not  exempt  from  taxation. 
Tlie  rule,  however,  seems  to  be  well  settled  in  Pennsylvania  that  so 
much  of  the  tangible  property  of  a  corporation  as  is  situated  in 
another  State,  and  there  employed  in  its  corporate  business,  is  not 
taxable  in  Pennsylvania.  Commonwealth  r.  Montgomery  &c.  Mining 
Co.,  5  Pa.  County  Courts  Rep.  89;  Commonwealth  /•.  Railroad  Co., 
145  Pa.  St.  9G  ;  Commonwealth  r.  Westinghouse  Mfg.  Co.,  151  Pa.  St. 
265;  Commonwealth  r.  Standard  Oil  Co.,  101  Pa.  St.  119.  The  rule  is 
the  same  in  New  York.  Pacific  Steamship  Company  c.  Commissioners, 
46  How.  Pr.  315. 

But  there  are  two  recent  cases  in  this  court  which  we  think  com- 
pletely cover  the  question  under  consideration  and  require  the  reversal 
of  the  judgment  of  the  State  court.  The  first  of  these  is  that  of  the 
Louisville  &c.  Ferry  Co.  ik  Kentucky,  188  U.  S.  385.  That  was  an 
action  to  recover  certain  taxes  imposed  upon  the  corporate  franchise 
of  the  defendant  compau}-,  which  was  organized  to  establish  and  main- 
tain a  ferry  between  Kentucky  and  Indiana.  The  defendant  was  also 
licensed  by  the  State  of  Indiana.  We  held  that  the  fact  that  such 
franchise  had  been  granted  by  the  Commonwealth  of  Kentucky  did 
not  bring  within  the  jin-isdiction  of  Kentucky  for  the  purpose  of  tax- 
ation the  franchise  granted  to  the  same  company  b}'  Indiana,  and 
which  we  held  to  be  an  incorporeal  hereditament  derived  from  and 
having  its  legal  situs  in  that  State.  It  was  adjudged  that  such  taxa- 
tion amounted  to  a  deprivation  of  property  without  due  process  of  law, 
in  violation  of  the  Fourteenth  Amendment,  as  much  so  as  if  the  State 
taxed  the  land  owned  by  that  company ;  and  that  the  officers  of  the 
State  had  exceeded  their  power  in  taxing  the  whole  franchise  without 
making  a  deduction  for  that  obtained  from  Indiana,  the  two  being 
distinct,  "although  the  enjoyment  of  both  are  essential  to  a  complete 
ferry  right  for  the  transportation  of  persons  and  property  across  the 
river  both  ways.'' 

The  other  and  more  recent  case  is  that  of  the  Delaware  &c.  Rail- 
road Co.  V.  Pennsylvania,  198  U.  S.  341.  That  was  an  assessment 
upon  the  capital  stock  of  the  railroad  compan\',  wherein  it  was  con- 
tended that  the  assessor  should  have  deducted  from  the  value  of  such 
stock  certain  coal  mined  in  Pennsylvania  and  owned  by  it,  but  stored 
in  New  York,  there  awaiting  sale,  and  beyond  the  jurisdiction  of  the 
commonwealth  at  the  time  appraisement  was  made.  This  coal  was 
taxable,  and  in  fact  was  taxed  in  the  State  where  it  rested  for  the  pur- 
poses of  sale  at  the  time  when  the  appraisement  in  question  was  made. 
Both  this  court  and  the  Supreme^  Court  of  Pennsylvania  had  held  that 
a  tax  on  the  corporate  stock  is  a  tax  on  the  assets  of  the  corporation 


I 


268  UNION    TRANSIT    CO.    V.    KENTUCKY.  [CHAP.  II. 

issuing  such  stock.  The  two  courts  agreed  in  the  general  proposition 
that  tangible  property  permanently  outside  of  the  State,  and  having  no 
situs  within  the  State,  could  not  be  taxed.  But  they  differed  upon  the 
question  whether  the  coal  involved  was  permanently  outside  of  the 
State.  In  delivering  the  opinion  it  was  said:  '' However  temporary 
Ihe  stay  of  the  coal  might  be  in  the  particular  foreign  States  where  it 
was  resting  at  the  time  of  the  appraisement,  it  was  definitely  and  for- 
ever beyond  the  jurisdiction  of  Pennsylvania.  And  it  was  within  tlie 
jurisdiction  of  tlie  foreign  States  for  purposes  of  taxation,  and  in  triiUi 
it  was  there  taxed.  We  regard  this  tax  as  in  substance  and  in  fact, 
though  not  in  form,  a  tax  specifically  levied  upon  the  property  of  tiie 
corporation,  and  part  of  that  property  is  outside  and  beyond  the  juris- 
diction of  the  State  which  thus  assumes  to  tax  it."  The  decision  in  that 
case  was  really  broader  than  the  exigencies  of  the  case  under  consider- 
ation required,  as  the  tax  was  not  upon  the  personal  property'  itself, 
but  upon  the  capital  stock  of  a  Pennsylvania  corporation,  a  part  of 
which  stock  was  represented  bj'  the  coal,  the  value  of  which  was  held 
should  have  been  deducted. 

The  adoption  of  a  general  rule  that  tangible  personal  property  in 
otlier  States  may  be  taxed  at  the  domicd  of  the  owner  involves  possi- 
biUties  of  an  extremely  serious  character.  Not  only  would  it  author- 
ize the  taxation  of  furniture  and  otlier  property  kept  at  countr\-  houses 
in  other  States  or  even  in  foreign  countries,  of  stocks  of  goods  and  mer- 
chandise kept  at  branch  establishments  when  already  taxed  at  the  State 
of  their  situs,  but  of  that  enormous  mass  of  personal  i)roperty  belong- 
ing to  railways  and  other  corporations  which  might  be  taxed  in  the 
state  where  they  are  incorporated,  though  their  charters  contemplated 
the  construction  and  operation  of  roads  wholly  outside  the  State,  and 
sometimes  across  the  continent,  and  when  in  no  other  particular  the}' 
are  subject  to  its  laws  and  entitled  to  its  protection.  The  propriet}- 
of  such  incorporations,  where  no  business  is  done  within  the  State,  is 
open  to  a  grave  doubt,  but  it  is  possible  that  legislation  alone  can 
furnish  a  remedv. 

Our  conclusion  upon  this  branch  of  the  case  renders  it  unnecessary 
to  decide  the  second  question,  viz  :  Whether  the  Transit  Company  was 
denied  the  equal  protection  of  the  laws. 

It  is  unnecessary  to  say  that  this  case  does  not  involve  the  question 
of  the  taxation  of  intangible  personal  property,  or  of  inheritance  or 
succession  taxes,  or  of  questions  arising  between  different  municipali- 
ties or  taxing  districts  within  the  same  State,  which  are  controlled  by 
different  considerations. 

We  are  of  opinion  that  the  cars  in  question,  so  far  as  the}'  were 
located  and  employed  in  other  States  than  Kentucky,  were  not  subject 
to  the  taxing  power  of  that  commonwealth,  and  that  the  judgment  of 
the  Court  of  Appeals  must  be  reversed,  and  the  case  remanded  to  that 
court  for  further  proceedings  not  inconsistent  with  this  opinion. 

Mr.  Justice  Wiiitk  concurred  in  tlui  result. 


SECT.  II.]  >EW    YOIIK    CK^'TKAL    RAILROAD    V.    MILLER.  2C)9 

Mr.  Justice  Holmes  :  It  seems  to  me  that  the  result  reached  by  the 
court  probably  is  a  desirable  one,  but  I  hardly  understand  how  it  can 
be  deduced  from  the  Fourteenth  Amendment,  and  as  the  Chief  Justice 
feels  the  same  dilhculty,  I  think  it  proper  to  sa\-  that  my  doubt  has 
not  been  removed. 


NEW   YORK   CENTRAL   RAILROAD   v.   MILLER. 

Supreme  Court  of  the  United  States.     1906. 
[Reported  202  U.  S.  584.] 

Holmes,  J.  These  cases  arise  upon  writs  of  certiorari,  issued  under 
the  State  law  and  addressed  to  the  State  comptroller  for  the  time  being, 
to  revise  taxes  imposed  upon  the  relator  for  the  years  1900,  1901,  1902, 
1903  and  1904  respectively.  The  tax  was  levied  under  New  York  Laws 
of  1896,  c.  908,  §  182,  which,  so  far  as  material,  is  as  follows  :  "  Franchise 
Tax  on  Corporations.  —  Ever}'  corporation  .  .  .  incorporated  .  .  .  under 
.  .  .  law  in  this  State,  shall  pa}-  to  the  State  treasurer  annually,  an  annual 
tax  to  be  computed  upon  the  basis  of  the  amount  of  its  capital  stock 
employed  within  this  State  and  upon  each  dollar  of  such  amount,"  ut 
a  certain  rate,  if  the  dividends  amount  to  six  per  cent  or  more  upon  the 
par  value  of  such  capital  stock.  "  If  such  dividend  or  dividends  amount 
to  less  than  six  per  centum  on  the  par  value  of  the  capital  stock  [as  was 
the  case  with  the  relator],  the  tax  shall  be  at  the  rate  of  one  and  one-half 
mills  upon  such  [)ortion  of  the  capital  stock  at  par  as  the  amount  of  cap- 
ital employed  within  this  State  bears  to  the  entire  capital  of  the  corpo- 
ration." It  is  provided  further  by  tlie  same  section  that  every  foreign 
corporation,  etc.,  "shall  pay  a  like  tax  for  the  privilege  of  exercising 
its  corporate  franchises  or  carrying  on  its  business  in  such  corporate 
or  organized  capacity  in  this  State,  to  be  computed  upon  the  basis  of 
the  capital  employed  by  it  within  this  State." 

The  relator  is  a  New  York  corporation  owning  or  hiring  lines  without 
as  well  as  witliin  the  State,  having  arrangements  with  other  carriers  for 
through  transportation,  routing  and  rating,  and  sending  its  cars  to  points 
without  as  well  as  within  tlie  State,  and  over  other  lines  as  well  as  its 
own.  The  cars  often  are  out  of  the  relator's  possession  for  some  tinu', 
and  may  be  transferred  to  many  roads  successively,  and  even  mav  be 
used  by  other  roads  for  tlieir  own  independent  business,  before  tlicv 
return  to  tlic  relator  or  tiio  Slate.  In  short,  by  the  familiar  course  of 
railroad  business  a  consi(U'rul)le  proportion  of  the  relator's  cars  con- 
stantly is  out  of  the  State,  and  on  this  ground  the  relator  contended 
that  that  proportion  should  be  deducted  from  its  entire  capital,  in  order 
to  find  the  capital  stock  employed  within  the  State.  This  contention 
the  comptroller  disallowofl. 

The  writ  of  certiorari  in  the  earliest  case,  No.  81,  with  the  return  set- 
ting forth  the  proceedings  of  the  coin|)trollcr.  Knight,  and  the  evidence 


270  XEW    YOEK    CENTRAL    EAILEOAD    V.    MILLER.        [CHAP.IT. 

grtven  before  him.  was  heard  by  the  Appellate  Division  of  the  Supreme 
Court,  and  a  reduction  of  the  amount  of  the  tax  was  ordered.  75  App. 
Div.  169.  On  appeal  the  Court  of  Appeals  ordered  the  proceedings  to 
be  remitted  to  the  comptroller,  to  the  end  that  further  evidence  might 
be  taken  upon  the  question  whether  any  of  the  relator's  rolling  stock 
was  used  exclusively  outside  of  the  State,  with  directions  that  if  it  should 
be  found  that  such  was  the  fact  the  amount  of  the  rolling  stock  so  used 
should  be  deducted.  173  N.  Y.  25-5.  On  rehearing  of  No.  81  and  with 
it  Xo.  S2.  before  the  comptroller,  now  Miller,  no  evidence  was  offered 
to  prove  that  any  of  the  relator's  cars  or  engines  were  used  continuously 
and  exclusively  outside  of  the  State  duriug  the  whole  tax  year.  In  the 
later  cases  it  was  admitted  that  no  substantial  amount  of  the  equipment 
was  so  used  daring  the  similar  period.  But  in  all  of  them  evidence  was 
otfered  of  the  movements  of  particular  cars,  to  illustrate  the  transfers 
which  they  went  through  before  they  returned,  as  has  been  stated,  evi- 
dence of  the  relator's  road  mileage  outside  and  inside  of  the  State,  and 
also  evidence  of  the  car  mileage  outside  and  inside  of  the  State,  in  order 
to  show,  on  one  footing  or  the  other,  that  a  certain  proportion  of  cars, 
although  not  the  same  cars,  was  continuously  without  the  State  during 
the  wh^le  tax  year.  The  comptroller  refused  to  make  any  reduction 
of  the  tax.  and  the  case  being  taken  up  again,  his  refusal  was  affirmed 
vy  the  Appellate  Division  of  the  Supreme  Court  and  by  the  Court  of 
Appeals  on  the  authority  of  the  former  decision.  89  App.  Div.  127  ; 
177  N.  Y.  584.  The  later  cases  took  substantially  the  same  course. 
The  relator  saved  the  questions  whether  the  statute  as  construed  was 
not  eontrarv  to  Article  1.  §  8,  of  the  Constitution  of  the  United  States, 
as  to  commerce  among  the  States;  Article  1.  s  10,  against  impairing 
the  obligation  of  contracts:  Article  4,  §  1.  as  to  giving  full  faith  and 
credit  to  the  pubhc  acts  of  other  States  :  and  the  Fourteenth  Amend- 
ment.    It  took  out  writs  of  error  and  brought  the  cases  here. 

The  argument  for  the  relator  had  woven  through  it  suggestions  which 
only  tended  to  show  that  the  construction  of  the  New  York  statute  by 
the'  Court  of  Appeals  was  wrong.  Of  course  if  the  statute  as  construed 
is  valid  under  the  Constitution,  we  are  bound  by  the  construction  given 
to  it  by  the  Stat«  court.  In  this  case  we  are  to  assume  that  the  statute 
purports  and  intends  to  allow  no  deduction  from  the  capital  stock  taken 
as  the  basis  of  the  tax.  unless  some  specific  portion  of  the  corporate 
property  is  outside  of  the  State  during  the  whole  tax  year.  We  must 
assume,  further,  that  no  part  of  the  corporate  property  in  question 
was  outside  of  the  State  during  the  whole  tax  year.  Tlie  proi)05ition 
really  was  conceded,  as  we  have  said,  and  the  evidence  that  was 
otfered  had  no  tendency  to  prove  the  contrary.  If  we  are  to  suppose 
that  the  reports  offered  in  evidence  were  accepted  as  competent  to 
establish  the  facts  which  they  set  forth,  still  it  would  be  going  a  very 
great  way  to  infer  from  car  mileage  the  average  number  or  proportion 
of  cars  absent  from  the  State.  For.  as  was  said  by  a  witness,  the  reports 
show  onlv  that  the  cars  made  so  many  miles,  hut  it  might  be  ten  or  it 


SECT.  II.]  XEW    YOKK    CEXTUAE    UAIEnOAD     r.     :\rTLLER.  271 

might  be  fifty  cars  that  made  them.  Certainly  no  inference  whatever 
could  be  drawn  that  the  same  cars  were  absent  from  the  btate  all  the 
time. 

In  view  of  what  we  have  said  it  is  questionable  whetlier  tlie  relator 
has  offered  evidence  enough  to  open  the  constitutional  objections  ur^ed 
against  the  tax.  Bui  as  ii  cannot  l)e  doubted,  in  view  of  the  well-known 
course  of  railroad  business,  that  some  considerable  proportion  of  the 
relator's  cars  always  is  absent  fi-om  the  State,  it  would  be  unsatisfactory 
to  turn  the  case  off  with  a  nioiely  technical  answer,  and  we  proceed. 
The  most  salient  points  of  the  i-eiator's  argument  are  as  follows:  This 
tax  is  not  a  tax  on  the  franchise  to  be  a  corporation,  but  a  tax  on  the 
use  and  exercise  of  the  franchise  of  transportation.  The  use  of  this  or 
any  other  franchise  outside  the  State  cannot  be  taxed  by  New  York. 
The  car  mileage  within  the  State  and  that  upon  other  lines  without  the 
State  afford  a  basis  of  apportionment  of  tue  average  total  of  cars  contin- 
uously employed  by  other  cori)orations  without  the  State,  and  the  relator's 
road  mileage  within  and  without  tlie  State  affords  a  basis  of  apportion- 
ment of  its  average  total  equi[)ment  continuously  employed  by  it  re- 
spectively within  and  without  the  State.  To  tax  onthe  total  value  within 
.and  without  is  beyond  the  jurisdiction  of  the  State,  a  taking  of  property 
without  due  process  of  law,  and  an  unconstitutional  interference  with 
commerce  among  the  States. 

A  part  of  this  argument  we  have  answered  already.  But  we  must  go 
further.  We  are  not  curious  to  inquire  exactly  what  kind  of  a  tax  this 
is  to  be  called.  If  it  can  be  sustained  by  the  name  given  to  it  bv  the 
local  courts  it  mast  be  sustained  by  us.  it  is  called  a  franchise  tax  in 
the  act,  but  it  is  a  franchise  tax  measured  by  propeilv.  A  tax  verv 
like  the  present  was  treated  as  a  tax  on  the  property  of  tiie  coiporation 
in  Delaware,  Lackawanna  &  Western  R.  R.  r.  Pennsylvania,  U»8  U.  S. 
341,  3o3.  This  seems  to  l)e  regarded  as  such  a  tax  bv  the  Court  of 
Appeals  in  tiiis  case.  See  People  r.  Morgan,  178  X.  Y.  433,  4:59.  If 
it  is  a  tax  on  any  franchise  which  the  State  of  New  York  gave,  and  tlie 
same  State  could  take  away,  it  stands  at  least  no  worse.  The  relator's 
argument  assumes  that  it  must  be  regarded  as  a  tax  of  a  particular  kind 
in  order  to  invalidate  it,  although  it  might  be  valid  if  regarded  as  the 
State  court  regards  it. 

Suppose,  then,  that  the  State  of  New  York  had  taxed  the  propertv 
directly,  there  was  nothing  to  hinder  its  taxing  the  whole  of  it.  It  is 
true  that  it  has  been  decided  that  property,  even  of  a  domestic  corpora- 
tion, cannot  be  taxed  if  it  is  permanently  out  of  the  State.  Union  Re- 
frigerator Transit  Co.  v.  Kentucky,  199  U.  S.  194,  201,  211  ;  Delaware, 
Lackawanna  &  Western  R.  R.  /•.  Pennsylvania.  198  U.  S.  341  ;  Louisville 
lK:  Jeffersonville  Ferry  Co.  r.  Kentucky,  188  U.  S.  385.  But  it  has  not 
been  decided,  and  it  could  not  be  decided,  that  a  State  may  not  tax  its 
own  corporations  for  all  their  property  within  the  State  during  the  tax 
year,  even  if  every  item  of  tiiat  property  slioidd  be  taken  successively 
into  another  State  for  a  day,  a  week,  or  six  months,  and  then  brouo-ht 


272  METROPOLITAN   LIFE    INS.    CO.    V.   NEW   ORLEANS.     [CHAP.  IL 

i)ack.  Using  the  language  of  doraicil,  which  now  so  frequently  is  ap- 
plied to  inanimate  things,  the  State  of  origin  remains  the  permanent 
situs  of  the  property,  notwithstanding  its  occasional  excursions  to 
foreign  parts.  Ayer  &  Lord  Tie  Co.  v.  Kentucky,  May  21,  1906, 
202  U.  S.  409.  See  also  Union  Refrigerator  Transit  Co.  v.  Kentucky 
199  U.  S.  194,  208,  209. 

It  was  suggested  that  this  case  is  but  the  complement  of  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  and  that  as  there  a  tax 
upon  a  foreign  corporation  was  sustained,  levied  on  such  proportion  of 
its  capital  stock  as  the  miles  of  track  over  which  its  cars  were  run  within 
the  State  bore  to  the  whole  number  of  miles  over  which  its  cars  were 
run,  so  here  in  the  domicil  of  such  a  corporation  there  should  be  an  ex- 
emption corresponding  to  the  tax  held  to  be  lawfully  levied  elsewhere. 
But  in  that  case  it  was  found  that  the  "  cars  used  in  this  State  have, 
during  all  the  time  for  which  tax  is  charged,  been  running  into,  through 
and  out  of  the  State."  The  same  cars  were  continuously  i-eeeiving  the 
protection  of  the  State  and,  therefore,  it  was  just  that  the  State  should 
tax  a  proportion  of  them.  Whether  if  the  same  amount  of  protection 
had  been  received  in  respect  of  constantly  changing  cars  the  same  prin- 
ciple would  have  applied  was  not  decided,  and  it  is  not  necessary  to 
decide  now.  In  the  present  case,  however,  it  does  not  appear  that  auv 
specific  cars  or  any  average  of  cars  was  so  continuous^  in  an}'  other 
state  as  to  be  taxable  there.  The  absences  relied  on  were  not  in  the 
course  of  travel  upon  fixed  routes,  but  random  excursions  of  casually 
chosen  cars,  determined  bv  the  varying  orders  of  particular  shippers 
and  the  arbitrary  convenience  of  other  roads.  Therefore  we  need  not 
consider  either  whether  there  is  any  necessary'  parallelism  between 
liability  elsewhere  and  immunity  at  home. 

Judgmerds  affirmed. 


METROPOLITAN   LIFE   INSURANCE   COMPANY  v. 
NEW   ORLEANS. 

Supreme  Court  of  the  United  States.     1907. 

[Rpported  205  U.  S.  395.] 

Moody,  J.  This  is  a  writ  of  error  to  review  the  judgment  of  the 
Supreme  Court  of  Louisiana,  which  sustained  a  tax  on  the  "  credits, 
mone^'  loaned,  bills  receivable,"  etc.,  of  the  plaintiff  in  error,  a  life 
insurance  company  incorporated  under  the  laws  of  New  York,  where 
it  had  its  home  office  and  principal  place  of  business.  It  issued  poli- 
cies of  life  insurance  in  the  State  of  Louisiana  and,  for  the  purpose  of 
doing  that  and  other  business,  had  a  resident  agent,  called  a  superin- 
tendent, whose  dut}'  it  was  to  superintend  the  compan3''s  business  gen- 
erally in  the  State.  The  agent  had  a  local  office  in  New  Orleans.  The 
company  was  engaged  in  the  business  of  lending  money  to  the  holders 


SECT.  II.]         METKOrOuT-ITAX   LIFE    I^•S.    CO.    V.    NEW    OUEEANS.        2(3 

of  its  policies,  which,  when  they  had  reached  a  certain  point  of  maturity, 
were  regarded  as  furnisliing  adequate  security  for  loans.     The  money 
lending  was  conducted  in  the  following  manner:    The  policy  holders 
desiring  to  obtain  loans  on  their  policies  applied  to  the  company's  agent 
in  ^Jew  Orleans.      If  ihe  agent  thought  a  loan  a  desirable  one  hvi  ad- 
vised the  company  of  the  application  by  couununicating  with  the  home 
office  ir.  Kew  York,  and  requested  that  the  loan   be  granted.      If  the 
home  office  approved  the  loan  the  comi)any  forwarded  to  the  agent  a 
check  for  ihe  amount,  with  a  note  to  be  signed  by  the  borrower.    The 
ageut  procurfd  the  note  to  be  signtxl,  attached  the  policy  to  it,  and  for- 
w^irded  both  note  and  policy  to  the  home  office  in  New  York.     He  then 
delivered  to  the  borrower  the  amount  of  the  loan.      When  interest  was 
due  ui)on  the  notes  it  was  paid  to  the  agent  and  by  him  transmitted  to 
the  home  office.      It  does  not  appear  'whether  or  not  the  notes  were  re- 
turned to  New  Orleans  for  the  endorsement  of  the  ptiyinents  of  interest. 
When  the  notes  were  paid  it  was  to  the  agent,  to  whom  they  were  sent 
to  be  delivered  back  to  the  makers.     At  all  other  times  the  iiotes  and 
policies  securing  them  were  kept  at  the  home  office  in  New  Y'ork.     The 
disputed  tax  was  not  eo  nomine  on  these  notes,  but  was  expressed  to 
be  on  "credits,  money  loaned,  bills  receivable,"  etc.,  and  its  amount 
was  ascertained  by  computing  the  sum  of  the  face  value  cf  all  the  notes 
held  by  the  company  at  the  time  of  the   assessment.     The  tax  was 
assessed  under  a  law,  Act  170  of  1898,  which  provided  for  a  levy  of 
annual  taxes  on  the  assessed  value  of  all  property  situated  within  the 
State  of  Louisiana,   and  in  Section  7   provided  as  follows  : 

"  That  it  is  the  duty  of  the  tax  assessors  throughout  the  State  to  place 
upon  the  assessment  list  all  property  subject  to  taxation,  including  mer- 
chandise or  stock  in  trade  on  hand  at  the  date  of  listing  within  their 
respective  districts  or  parishes.  .  .  .  And  provided  further.  In  assesa- 
ing  mercantile  firms  the  true  intent  and  purpose  of  this  act  shall  be  held 
to^mean  the  placing  of  such  value  upon  stock  in  trade,  all  cash,  whether 
borrowed  or  not,  money  at  interest,  open  accounts,  credits,  &c.,  as  will 
rei^resent  in  their  aggregate  a  fair  average  on  the  capital,  both  cash  and 
credits,  employed  in  the  business  of  the  party  or  parties  to  be  assessed. 
And  this  shall  apply  with  equal  force  to  any  person  or  persons  repre- 
senting in  this  State  business  interests  that  may  claim  domicile  else- 
where, the  intent  and  i)urpose  being  that  no  non-resident,  either  by 
himself  or  thi-ough  any  agent,  shall  transact  business  here  without 
paving  to  the  State  a  corresponding  tax  with  that  exacted  of  its  own 
citizens  ;  and  all  bills  receivai)le,  obligations  or  credits  arising  from  the 
business  done  in  this  State  are  hereby  declared  as  assessable  within 
this  State  and  at  the  business  domicile  of  said  non-resident,  his  agent 
or  representative." 

The  evident  purpose  of  this  law  is  to  lay  the  burden  of  taxation 
equally  upon  those  who  do  business  within  tlie  State.  It  requires  that 
in  the  valuation  for  the  pm-poses  of  taxation  of  the  property  of  mercan- 
tile firms  the  stock,  goods,  and  credits  shall   be  taken  into  accomit,  to 


274     jnietropot.ttax  t.tfe  i:s:s.  co.  r.  new  Orleans,      [chap.  ii. 

the  end  that  the  average  capital  employed  in  the  business  shall  be  taxed. 
This  method  of  assessment  is  applied  impartiall}'  to  the  citizens  of  the 
State  and  to  the  citizens  of  other  States  or  countries  doing  business, 
personall}'  or  through  agents,  within  the  State  of  Louisiana.  To  accom- 
plish this  result,  the  law  expressly  provides  that  ''  all  bills  receivable, 
obligations  or  credits  arising  from  tlie  business  done  in  this  State  shall 
be  assessable  at  the  business  domicile  of  the  resident."  Thus  it  is  clear 
that  the  measure  of  the  taxation  designed  by  the  law  is  the  fair  average 
of  the  capital  employed  in  the  business.  Cash  and  credits  and  bills 
receivable  are  to  be  taken  into  account  merel}'  be(;ause  they  represent 
the  ca[)ital  and  are  not  to  be  omitted  because  their  owner  happens  to 
have  a  domicile  in  another  State.  The  law  was  so  construed  by  the 
Supreme  Court  of  Louisiana,  where,  in  sustaining  the  assessment,  it 
was  said  : 

"There  can  be  no  doubt  that  the  seventh  section  of  the  act  of  1898, 
quoted  in  the  judgment  of  tlie  District  Court,  announced  the  policy  of 
the  State  touching  the  taxation  of  credits  and  bills  of  exchange  repre- 
senting an  amount  of  the  property'  of  non-residents  equivalent  or  corre- 
sponding to  said  bills  or  credits  which  was  utilized  bj'  them  in  the 
prosecution  of  their  business  in  the  State  of  Louisiana.  The  evident 
object  of  the  statute  was  to  do  away  with  discrimination  theretofore  ex- 
isting in  favor  of  non-residents  as  against  residents,  and  place  them  on 
an  equal  footing.  The  statute  was  not  arbitrary,  but  a  legitimate  exer- 
cise of  legislative  power  and  discretion." 

The  tax  was  levied  in  obedience  to  the  law  of  the  State,  and  the  only 
question  here  is  whether  there  is  anything  in  the  Constitution  of  the 
United  States  which  forbids  it.  The  answer  to  tliat  question  depends 
upon  whether  the  property  taxed  was  within  the  territorial  jurisdiction 
of  the  State.  Property  situated  without  that  jurisdiction  is  beyond  the 
State's  taxing  power,  and  the  exaction  of  a  tax  upon  it  is  in  violation 
of  the  Fourteenth  Amendment  to  the  Constitution.  Louisville  Ferr^' 
Co.  ('.  Kentuckv,  188  U.  S.  385  :  Delaware,  &c..  Railroad  Co.  v.  Penn- 
sylvania, 198  U.  S.  341  ;  Union  Refrigerator  Transit  Co.  r.  Kentucky, 
199  U.  S.  194.  But  personal  property  may  be  taxed  in  its  permanent 
abiding  place,  although  the  domicile  of  the  owner  is  elsewhere.  It  is 
usually  easy  to  determine  the  taxable  situs  of  tangible  personal  propert}'. 
But  where  personal  property  is  intangible,  and  consists,  as  in  this  case, 
of  credits  reduced  to  the  concrete  form  of  proraissor}"  notes,  the  inquirv 
is  com[)licated,  not  only  b^-  the  fiction  that  the  domicile  of  personal 
propert}'  follows  that  of  its  owner,  but  also  b}'  the  doctrine,  based  upon 
historical  reasons,  that  where  debts  have  assumed  the  form  of  bonds  or 
other  specialties,  they  are  regarded  for  some  purposes  as  being  the 
property  itself,  and  not  the  mere  representative  of  it,  and  may  have  a 
taxable  situs  of  their  own.  How  far  promissoiy  notes  are  assimilated 
lo  specialties  in  respect  of  this  doctrine,  need  not  now  be  considered. 

The  question  in  this  case  is  controlled  b}'  the  authority  of  the  pre- 
vious decisions  of  this  court.     Taxes  under  this  law  of  Louisiana  have 


SECT.  II.]    MKTKOPOLITAX  LIFE  IXS.  CO.  V.    >EW  OKEEAXS.   275 

been  twice  considered  here,  and  assessments  upon  credits  arising  oat  of 
investments  in  tlie  State  have  been  sustained.     A  tax  on  credits  evi- 
denced by  notes  secured  by  mortgages  w.is  sustained  wliere  the  owner, 
a  non-resident  who  had  inherited  them.  left  tliem  in   Louisiana  in  the 
possession  of  an  agent,  wlio  collected  the  principal  and  interest  as  they 
hecame  due.      New  Orleans  r.  Stenipel,  175  U.  8.  309.     Again,  it  was 
held  that  where  a  foreign  banking  company  did  business  in  New  Orleans, 
and  through  an  agent  lent  money  which  was  evidenced  by  checks  drawn 
upon  the  agent,   treated  as  overdrafts  and  secured  by  collateral,  the 
checks  and  collateral  remaining  in  the  hands  of  the  agent  until  the  trans- 
actions were  closed,  the  credits  thus  evidenced  were  taxable  in  Loui- 
siana.    Board  of  Assessors  c.  Comptoir  National,  191  U.  S.  388.     In 
both  of  these  cases  the  written  evidences  of  the  credits  were  continuously 
present  in  the  State,  and  their  presence  was  clearly  the  dominant  factor 
in  the  decisions.      Here  the  notes,  though  present  in  the  State  at  all 
times  when  they  were  needed,  were  not  continuously  present,  and  during 
the  greater  i)art  of  their  lifetime  were  absent  and  at  their  owner's  doui- 
icile.     Between  these  two  decisions  came  the  case  of  Bristol  v.  Wash- 
ington County.  177  U.  S.  133.     It  appeared  in  that  case  that  a  resident 
of  New  York  was  engaged  through  an  agent  in  the  business  of  lending 
raone}'  in  Minnesota,   secured  by  mortgages  on  real  property.       The 
notes  were  made  to  the  order  of  the  non-resident,  though  payable  in 
Minnesota,  and  the  mortgages  ran  to  her.     The  agent  made  the  loans, 
took  and  kept  the  notes  and  securities,  collected  the  interest  and  re- 
ceiveil  payment.     The  property  thus   invested  continued  to  be  taxed 
without  protest  in  Minnesota,  until  finally  the  course  of  business  was 
changed  by  sending  the  notes  to  the  domicile  of  the  ovvner  in  New  York, 
■where  they  were  kept  by  her.     The  mortgages  were,  however,  retained 
by  the  agent  in   Minnesota,  though  his  power  to  discharge  them  was 
revoked.     The  interest  was  [)aid  to  the  agent  and  the  notes  forwarded 
to  him  for  collection  when  due.     Taxes  levied  after  this  change  in  the 
business  were  in  dispute  in  the  case.     In  delivering  th(>  opinion  of  the 
oourt,  INIr.   Chief  Justice  Fuller  said:   "•Nevertheless,   the  business  of 
loaning  money  through  the  agency  in  Minnesota  was  continued  during 
all  these  years,  just  as  it  had  I)een  carried  on  l)efore,  and  we  agree  with 
tin?  Circuit  Court  that  the  fact  that  the  notes  were  sent  to  Mrs.  Bristol 
in  New  York,  and  the  fact  of  the  revocation  of  the  [)ovver  of  attorney, 
did  not  exempt  these  iuvestments  from  taxation  under  the  statutes  as 
expounded  in  the  decisions  to  which  we  have  referred.   ..." 

Referring  to  the  case  of  New  Orleans  r.  Stein[)el,  the  Chief  Justice 
said  : 

"There  the  mone3s,  notes,  and  other  evidences  of  credits  were  in  fact 
in  Louisiana,  though  their  owners  resided  elsewhere.  Still,  under  the 
circumstances  of  the  case  before  us,  we  think,  as  we  have  said,  that  the 
mere  sending  of  tlie  notes  to  New  York  and  the  revocation  of  the  power 
of  attorne}'  did  not  tak(!  th(;s(;  investments  out  of  the  rule. 

"  Persons  are  not  permitted  to  avail  tlieinselves,  for  their  own  benefit. 


276       METROrOLITAX  LIFE  I^'S.    CO.    V.    NEW  OKLEAXS.        [ciIAP.  II. 

of  the  laws  of  a  State  in  the  conduct  of  business  within  its  limits,  and 
then  to  escape  their  due  contribution  to  the  public  need,  through  action 
of  this  sort,  whether  taken  for  convenience  or  by  design." 

Accordingly  it  was  held  that  the  tax  was  not  forbidden  by  the  Fed- 
eral Constitution. 

In  this  case,  the  controlling  consideration  was  the  presence  in  the 
State  of  the  capital  employed  in  the  business  of  lending  money,  and 
the  fact  that  the  notes  were  not  continuously  present  was  regarded  as 
immaterial.  It  is  impossible  to  distinguish  the  case  now  before  us  from 
the  Bristol  case.  Here  the  loans  were  negotiated,  the  notes  signed,  the 
security  taken,  the  interest  collected,  and  the  debts  paid  within  the  State. 
The  notes  and  securities  were  in  Louisiana  wlienever  the  business  exi- 
gencies required  them  to  be  there.  Their  removal  with  the  intent  that 
they  shall  return  whenever  needed,  their  long  continued  though  not  per- 
manent absence,  cannot  have  the  effect  of  releasing  them  as  the  repre- 
sentatives of  investments  in  business  in  the  State  from  its  taxing  power. 
The  law  may  well  regard  the  place  of  their  origin,  to  which  they  intend 
to  return,  as  their  true  home,  and  leave  out  of  account  temporary  ab- 
sences, however  long  continued.  Moreover,  neither  the  fiction  that 
personal  property  follows  the  domicile  of  its  owner,  nor  the  doctrine 
that  credits  evidenced  by  bonds  or  notes  may  have  the  situs  of  the  lat- 
ter, can  be  allowed  to  obscure  the  truth.  Blackstone  v.  Miller,  188 
U.  S.  189.  We  are  not  dealing  here  merely  with  a  single  credit  or  a 
series  of  separate  credits,  but  with  a  business.  The  insurance  comi)any 
chose  to  enter  into  the  business  of  lending  money  within  the  State  of 
Louisiana,  and  employed  a  local  agent  to  conduct  that  business.  It 
was  conducted  under  the  laws  of  the  State.  The  State  undertook  to  tax 
the  capital  employed  in  the  business  precisely  as  it  taxed  the  capital  of 
its  own  citizens  in  like  situation.  For  the  purpose  of  arriving  at  the 
amount  of  capital  actually  employed,  it  caused  the  credits  arising  out  of 
the  business  to  be  assessed.  We  think  the  State  had  the  power  to  do 
this,  and  that  the  foreigner  doing  business  cannot  escape  taxation  upon 
his  capital  by  removing  temporarily  from  the  State  evidences  of  credits 
in  the  form  of  notes.  Under  such  circumstances,  they  have  a  taxable 
situs  in  the  State  of  their  origin. 

The  judgment  of  the  Supreme  Court  of  Louisiana  is 

Affirmed. 


SECT.  11.]  IX    EE    ESTATE    OF    SWIFT. 


In  re  estate   OF   SWIFT. 

Court  of  Appeals  of  New  York.     1893. 
[Reported  137  Xcw  York,  77.] 

Gray,  J.  James  T.  Swift  died  in  July,  1890,  being  a  resident  of 
this  State  and  leaving  a  will,  by  which  he  made  a  disposition  of  all  his 
propert}-  among  relatives.  After  many  legacies  of  money  and  of 
various  articles  of  personal  i)roperty,  he  directed  a  division  of  his 
residuary  estate  into  four  portions,  and  he  devised  and  bequeathed  one 
portion  to  each  of  four  persons  named.  The  executors  were  given  a 
power  of  sale  for  the  purpose  of  paying  the  legacies  and  of  making  the 
distribution  of  the  estate.  At  the  time  of  his  death,  the  testator's 
estate  included  certain  real  estate  and  tangible  personal  property  in 
chattels,  situated  within  the  State  of  New  Jersey,  which  were  realized 
upon  by  the  executors  and  converted  into  moneys  in  hand.  When, 
upon  their  application,  an  appraisement  was  had  of  the  estate,  in  order 
to  fix  its  value  under  the  requirements  of  the  law  taxing  gifts,  legacies, 
and  inheritances,  the  surrogate  of  the  county  of  New  York,  before 
whom  the  matter  came,  held,  with  respect  to  the  appraisement,  that 
the  real  and  personal  property  situated  without  the  State  of  New  Y''ork 
were  not  subject  to  appraisal  and  tax  under  the  law,  and  the  excep- 
tions taken  by  the  comptroller  of  the  city  of  New  York  to  that  deter- 
mination raise  the  first  and  the  principal  question  which  we  shall 
consider. 

Surrogate  Ransom's  opinion,  which  is  before  us  in  the  record,  con- 
tains a  careful  review  of  the  legal  principles  which  limit  the  right  to 
impose  the  tax,  and  his  conclusions  are  as  satisfactory  to  my  mind,  as 
they  evidently  were  to  the  minds  of  the  learned  justices  of  the  General 
Term  of  the  Supreme  Court,  who  agreed  in  affirming  the  surrogate's 
decree  upon  his  opinion. 

The  Attorney-General  has  argued  that  this  law,  commonly  called  the 
collateral  inlieritance  tax  law,  imposes  not  a  property  tax  but  a  charge 
for  the  privilege  of  acquiring  property,  and,  as  I  apprehend  it,  the 
point  of  his  argument  is  that,  as  tliere  is  no  absolute  right  to  succeed 
to  property,  the  State  has  a  right  to  annex  a  condition  to  the  permis- 
sion to  take  by  will,  or  by  the  intestate  laws,  in  the  form  of  a  tax,  to 
be  paid  by  the  persons  for  whose  benefit  the  remedial  legislation  has 
been  enacted.  That  is,  substantially,  the  way  in  which  he  puts  the 
proposition,  and  if  the  premise  be  true  that  the  tax  imposed  is  upon 
the  privilege  to  acquire,  and,  as  lie  says  in  his  brief,  is  like  "  a  duty 
imposed,  payable  by  the  beneficiary,"  possii)ly  enough,  we  should  have- 
to  agree  with  him.  We  might  think,  in  tliat  view  of  the  act,  that  tho 
situs  of  property  in  a  foreign  jurisdiction  was  not  a  controlling  circum- 
stance. But  if  we  take  up  the  provisions  of  tiie  law  b}-  which  the  ta.\ 
is  xmDOsed,  and  if  wo  consider  them  as  they  are  framed  and  the  prin- 


27S  i:S    KE    ESTATE    OF    SWIFT.  [ciIAP.  II. 

ciple  which  then  seems  to  underlie  the  peculiar  system  of  taxation 
created,  1  do  not  think  that  his  essential  proposition  finds  adequate 
support.  The  law  in  force  at  the  time  of  the  decease  of  the  testator  is 
contained  in  chapter  713  of  the  Laws  of  1887,  amending  chapter  483 
of  the  Laws  of  1885,  and  is  entitled  "  An  act  to  tax  gifts,  legacies,  and 
collateral  inheritances  in  certain  cases." 

By  the  first  section  it  is  provided  that  "  all  property  which  shall  pass 
by  will  .  .  .  from  any  person  who  may  die  seized  or  possessed  of  the 
same,  while  a  resident  of  this  State,  or,  if  such  decedent  was  not  a 
resident  of  this  State  at  the  time  of  his  death,  which  property  or  any 
part  thereof  shall  be  within  this  State,  .  .  .  shall  be  and  is  subject  to 
a  tax  .   .  .  to  be  paid  ...  for  the  use  of  the  State,"  etc. 

In  the  fourth  section  it  is  provided  that  "  all  taxes  imposed  by  this 
act,  unless  otherwise  herein  provided  for,  shall  be  due  and  payable  at 
the  death  of  the  decedent,"  etc. 

By  the  sixth  section,  it  is  provided  that  the  executor  shall  "  deduct 
the  tax  from  the  legacy  or  property,  subject  to  said  tax,  or  if  the 
legacy  or  property  be  not  money,  he  shall  collect  the  tax  thereon  upon 
the  appraised  value  thereof  from  the  legatee,  or  person  entitled  to  such 
property,  and  he  shall  not  deliver,  or  be  compelled  to  deliver,  any  spe- 
cific legacy  or  property  subject  to  tax  to  any  person  until  he  shall  have 
collected  the  tax  thereon,"  etc.  The  language  of  the  act  has  been 
justly  condemned,  for  being  involved  and  difficult  to  read  clearly;  but 
considering  the  language  employed  in  these  and  in  other  sections  of  the 
law,  in  its  ordinary  sense,  I  think  we  would  at  once  say  that  if  the 
legislature  had  not  actually  imposed  a  tax  upon  the  property  itself, 
upon  the  death  of  its  owner,  it  had  certainly  intended  to  impose  a  tax 
upon  its  succession,  which  was  to  be  a  charge  upon  the  property,  and 
which  operated,  in  effect,  to  diminish  pro  tanto  its  value,  or  the  capi- 
tal, coming  to  the  new  owner  under  a  will,  or  by  the  intestate  laws. 
Could  any  one  say,  after  reading  the  provisions  of  this  law,  that  it  was 
the  legatee,  or  person  entitled,  who  was  taxed?  I  doubt  it.  Propert}^, 
which  was  the  decedent's  at  the  time  of  his  death,  is  subjected  to  the 
payment  of  a  tax.  The  tax  is  to  be  deducted  from  the  legacy ;  or, 
when  deduction  is  not  possible  from  the  legacy  not  being  in  money, 
and  a  collection  from  the  legatee  or  the  person  entitled  to  the  property 
is  authorized  to  be  made,  the  tax  so  to  be  collected  is  described  as 
"  the  tax  thereon,"  tliat  is,  on  the  property. 

If  it  should  be  said  that  such  an  interpretation  of  the  law  is  in  con- 
flict with  a  doctrine  which  some  judges  have  asserted,  respecting  the 
nature  of  this  tax,  I  think  it  might  be  sufficient  to  say  that  the  phrase- 
ology of  the  New  York  law  diSfers,  more  or  less,  from  that  of  other 
States,  and  seems  peculiarly  to  charge  the  subject  of  the  succession 
with  the  payment  of  tlie  tax.  But  I  do  not  think  it  at  all  important 
to  our  decision  here  that  we  should  hold  it  to  be  a  tax  upon  property 
precisely. 

A  precise  definition  of  the  nature  of  this  tax  is  not  essential,  if  it  is 


SECT.  II.]  IX    EE    ESTATE    OF    SWIFT.  279 

susceptible  of  exact  definition.  Thus  far,  in  this  court,  we  have  not 
thought  it  necessary,  in  the  cases  coming  before  us,  to  determine 
whether  the  object  of  taxation  is  the  propert}-  which  passes,  or  not ; 
though,  in  some,  expressions  may  be  found  which  seem  to  regard  the 
tax  in  that  light.  Matter  of  McPherson,  104  N.  Y.  306 ;  Matter  of 
Enston,  113  id.  174;  Matter  of  Sherwell,  125  id.  379;  Matter  of  Ro- 
raaine,  127  id.  80  ;  and  Matter  of  Stewart,  131  id.  274.  The  idea  of 
tins  succession  tax,  as  we  maj-  convenientl}'  term  it,  is  more  or  less 
compound  ;  the  principal  idea  being  the  subjection  of  property,  owner- 
ship of  which  has  ceased  bj-  reason  of  the  death  of  its  owner,  to  a 
diminution,  b}-  the  State  reserving  to  itself  a  portion  of  its  amount,  if 
in  money,  or  of  its  appraised  value,  if  in  other  forms  of  property.  The 
accompanying,  or  the  correlative  idea  should  necessarily  be  that  the 
property,  over  which  such  dominion  is  thus  exercised,  shall  be  within 
the  territorial  limits  of  the  State  at  its  owner's  death,  and,  therefore, 
subject  to  the  operation  and  the  regulation  of  its  laws.  The  State,  in 
exercising  its  power  to  subject  realty,  or  tangible  property,  to  the 
operation  of  a  tax,  must,  by  every  rule,  be  limited  to  propert}-  within 
its  territorial  confines. 

The  question  here  does  not  relate  to  the  power  of  the  State  to  tax 
its  residents  with  respect  to  the  ownership  of  property  situated  else- 
where. That  question  is  not  involved.  The  question  is  whether  the 
legislature  of  the  State,  in  creating  this  system  of  taxation  of  inherit- 
ances, or  testamentary  gifts,  has  not  fixed  as  the  standard  of  right  the 
property  passing  by  will,  or  by  the  intestate  laws. 

What  has  the  State  done,  in  effect,  by  the  enactment  of  this  tax  law? 
It  reaches  out  and  appropriates  for  its  use  a  portion  of  the  property  at 
the  moment  of  its  owner's  decease ,  allowing  onl}'  the  balance  to  pass 
in  the  way  directed  by  testator,  or  permitted  by  its  intestate  law,  and 
while,  in  so  doing,  it  is  exercising  an  inherent  and  sovereign  right,  it 
seems  very  clear  to  my  mind  that  it  affects  only  property  which  lies 
within  it,  and,  consequently,  is  subject  to  its  right  of  eminent  domain. 
The  theory  of  sovereignty,  which  invests  the  State  with  the  right  and 
the  power  to  permit  and  to  regulate  the  succession  to  property  upon 
its  owner's  decease,  rests  upon  the  fact  of  an  actual  dominion  over 
that  property.  In  exercising  such  a  power  of  taxation,  as  is  here  in 
question,  the  principle,  obviously,  is  that  all  property  in  the  State  is 
tributary  for  such  a  purpose  and  the  sovereign  power  takes  a  portion, 
or  percentage  of  the  property,  not  because  the  legatee  is  subject  to 
its  laws  and  to  the  tax,  but  because  the  State  has  a  superior  right,  or 
ownership,  by  force  of  which  it  can  intercept  the  property,  upon  its 
owner's  deatii,  in  its  passage  into  an  ownership  regulated  by  the  en- 
abling legislation  of  the  State. 

The  rules  of  taxation  have  become  pretty  well  settled,  and  it  is  fun- 
damental among  them  that  there  sliall  l)c  jurisdiction  over  the  subject 
taxed;  or,  as  it  has  been  soinetiines  expiesscd,  the  taxing  {)Ower  of 
the  State  is  coextensive  with  its  sovereignt}-.     It  has  not  the  power  to 


280  IN    KE    ESTATE    OF    SWIFT.  [ CHAP.  II. 

tax  directly  either  lands  or  tangible  personal  property  situated  in  an- 
other State  or  country.  As  to  the  latter  description  of  property  no 
fiction  transmuting  its  situs  to  the  domicile  of  the  owner  is  available, 
when  the  question  is  one  of  taxation.  In  this  connection  the  observa- 
tions of  Chief  Judge  Comstock,  in  Hoyt  v.  Commissioners  of  Taxes, 
23  N.  Y.  224,  and  of  some  text-writers,  are  not  inappropriately  referred 
to.  He  had  said  that  lauds  and  personal  property  having  an  actual 
situation  within  the  State  are  taxable,  and,  by  a  necessary  implication, 
that  no  other  property  can  be  taxed.  He  says,  further,  "  If  we  say  that 
taxation  is  on  the  person  in  respect  to  the  property,  we  are  still  without 
a  reason  for  assessing  the  owner  resident  here  in  respect  to  one  part 
of  his  estate  situated  elsewhere  and  not  in  respect  to  another  part. 
Both  are  the  subjects  of  taxation  in  the  foreign  jurisdiction." 

In  Judge  Cooley's  work  on  Taxation  it  is  remarked  (p.  159)  that 
"  a  State  can  no  more  subject  to  its  power  a  single  person,  or  a  single 
article  of  propert}',  whose  residence  or  situs  is  in  another  State,  than 
it  can  subject  all  the  citizens,  or  all  the  property  of  such  other  State  to 
its  power." 

Judge  Cooley  had  reference  in  his  remarks  to  the  case  of  bonds  of  a 
railroad;  for  he  cites  the  case  of  "the  State  Tax  on  Foreign-Held 
Bonds  "  in  the  United  States  Supreme  Court  (15  Wallace,  300),  where 
Mr.  Justice  Field  delivered  the  opinion,  and,  in  the  course  of  it,  observed 
that  "  the  power  of  taxation,  however  vast  in  its  character  and  search- 
ing in  its  extent,  is  necessarily  limited  to  subjects  within  the  jurisdic- 
tion of  the  State." 

Judge  Story,  in  his  work  on  the  Conflict  of  Laws,  speaking  of  the 
subject  of  jurisdiction  in  regard  to  property,  said  (section  550)  that 
the  legal  fiction  as  to  the  situs  of  movables  yields  when  it  is  necessary 
for  the  purpose  of  justice,  and,  further,  "  a  nation  within  whose  terri- 
tory any  personal  property  is  actually  situated  has  an  entire  dominion 
over  it  while  therein,  in  point  of  sovereignty  and  jurisdiction,  as  it  has 
over  immovable  propert}'  situated  there." 

The  proposition  which  suggests  itself  from  reasoning,  as  from  author- 
ity, is  that  the  basis  of  the  power  to  tax  is  the  fact  of  an  actual  domin- 
ion over  the  subject  of  taxation  at  the  time  the  tax  is  to  be  imposed. 

The  effect  of  this  special  tax  is  to  take  from  the  property  a  portion, 
or  a  percentage  of  it,  for  the  use  of  the  State,  and  I  think  it  quite 
immaterial  whether  tlie  tax  can  be  precisely  classified  with  a  taxation 
of  property  or  not.  It  is  not  a  tax  upon  persons.  If  it  is  called  a  tax 
upon  the  succession  to  the  ownership  of  property,  still  it  relates  to 
and  subjects  the  property  itself,  and  when  that  is  without  the  jurisdic- 
tion of  the  State,  inasmuch  as  the  succession  is  not  of  property  within 
the  dominion  of  the  State,  succession  to  it  cannot  be  said  to  occur  by 
permission  of  the  State.  As  to  lands  this  is  clearly  the  case,  and 
rights  in  or  power  over  them  are  derived  from  or  through  the  laws  of 
the  foreign  State  or  country.  As  to  goods  and  chattels  it  is  true  ;  for 
their  transmission  abroad  is  subject  to  the  permission  of  and  regulated 


SKCT.  II.]  IX    EE    ESTATE    OF    SWIFT.  281 

by  the  laws  of  the  State  or  country  where  actually  situated.  Jurisdic- 
tion over  them  belongs  to  the  courts  of  that  State  or  country'  for  all 
purposes  of  policy,  or  of  administration  in  the  interests  of  its  citzens, 
or  of  those  having  enforceable  riglits,  and  their  surrender,  or  transmis- 
sion, is  upon  principles  of  comity. 

When  succession  to  the  ownership  of  property  is  by  the  permission 
of  the  State,  then  the  permission  can  relate  only  to  property'  over  which 
the  State  has  dominion  and  as  to  which  it  grants  the  privilege  or 
permission. 

Nor  is  the  argument  available  that,  b}'  the  power  of  sale  conferred 
upon  the  executors,  there  was  an  equitable  conversion  worked  of  the 
lands  in  New  Jersey,  as  of  the  time  of  the  testator's  death,  and,  hence, 
that  the  property  sought  to  be  reached  by  the  tax,  in  the  eye  of  the 
law,  existed  as  cash  in  this  State  in  the  executor's  hands,  at  the 
moment  of  the  testator's  death.  There  might  be  some  doubt  whether 
the  main  proposition  in  the  argument  is  quite  correct,  and  whether  the 
land  did  not  vest  in  the  residuary  legatees,  subject  to  the  execution  of 
the  power  of  sale.  But  it  is  not  necessaiy  to  decide  that  question. 
Neither  the  doctrine  of  equitable  conversion  of  lands,  nor  an}'  fiction 
of  situs  of  movables,  can  have  any  bearing  upon  the  question  under 
advisement.  The  question  of  the  jurisdiction  of  the  State  to  tax  is  one 
of  fact  and  cannot  turn  upon  theories  or  fictions ;  which,  as  it  has  been 
observed,  have  no  place  in  a  well  adjusted  system  of  taxation. 

We  can  arrive  at  no  other  conclusion,  in  my  opinion,  than  that 
the  tax  provided  for  in  this  law  is  only  enforceable  as  to  propertj' 
which,  at  the  time  of  its  owner's  death,  was  within  the  territorial  limits 
of  this  State.  As  a  law  imposing  a  special  tax,  it  is  to  be  strictly 
construed  against  the  State  and  a  case  must  be  clearly  made  out  for  its 
application.  We  should  incline  against  a  construction  which  might 
lead  to  double  taxation  ;  a  result  possible  and  probable  under  a  dif- 
ferent view  of  this  law.  If  the  property  in  the  foreign  jurisdiction  was 
in  land,  or  in  goods  and  chattels,  when,  upon  the  testator's  death,  a 
new  title,  or  ownership,  attached  to  it,  the  bringing  into  this  State  of 
its  cash  proceeds,  subsequently,  no  matter  by  what  authority  of  will, 
or  of  statute,  did  not  subject  it  to  the  tax.  A  different  view  would  be 
against  every  sound  consideration  of  what  constitutes  the  basis  for 
such  taxation,  and  would  not  accord  with  an  undei'standing  of  the 
intention  of  the  legislature,  as  more  or  less  plainly  expressed  in  these 
acts. 

Another  question,  which  I  shall  merely  advert  to  in  conclusion, 
arises  upon  a  ruling  of  the  surrogate  with  respect  to  appraisement,  in 
connection  with  a  clause  of  the  will  directing  that  the  amount  of  the 
tax  upon  the  legacies  and  devises  should  be  paid  as  an  expense  of 
administration.  The  appraiser,  in  ascertaining  the  value  of  the  residu- 
ary estate  for  the  purpose  of  taxation,  deducted  the  anioinit  of  the  tax 
to  be  assessed  on  prior  legacies.  Tiic  surrogate  overruled  liim  in  this, 
and  held  that  there  should  be  no  deduction  from  the  value  of  the  resid- 


282  T-KOTIir^^GIIAM    V.    SIIAW.  [chap.  TT. 

uary  estate  of  the  amount  of  the  tax  to  be  assessed,  either  upon  prior 
legacies,  or  upon  its  value.  He  held  that  the  legacies  taxable  should 
be  reported,  irrespective  of  the  provision  of  the  will ;  and  that  a  mode 
of  payment  of  the  succession  tax  prescribed  by  will  is  something  with 
which  the  statute  is  not  concerned.  I  am  satisfied  with  his  reasoning 
and  can  add  nothing  to  its  force.  Manifestly,  under  the  law  that 
which  is  to  be  reported  by  the  appraiser  for  the  purpose  of  the  tax  is 
the  value  of  the  interest  passing  to  the  legatee  under  the  will,  without 
any  deduction  for  any  purpose,  or  under  any  testamentary  direction. 

A  question  is  raised  as  to  the  effect  upon  the  law,  as  contained  in 
the  acts  of  1885  and  1887,  of  the  passage  of  chapter  215  of  the  Laws 
of  1891  ;  but  as  that  has  been  the  subject  of  another  appeal,  and  is 
fully  discussed  in  the  opinion  in  the  Matter  of  the  Estate  of  Prime,  136 
N.  Y.  347,  reference  will  be  made  to  it  here. 

My  brethren  are  of  the  opinion  that  the  tax  imposed  under  the  act  is 
a  tax  on  the  right  of  succession,  under  a  will,  or  by  devolution  in  case 
of  intestacy  ;  a  view  of  the  law  which  my  consideration  of  the  question 
precludes  my  assenting  to. 

They  concur  in  my  opinion  so  far  as  it  relates  to  the  imposition  of  a 
tax  upon  real  estate  situated  out  of  this  State,  although  owned  by  a 
decedent,  residing  here  at  the  time  of  his  decease ;  holding  with  me 
that  taxation  of  such  was  not  intended,  and  that  the  doctrine  of  equi- 
table conversion  is  not  applicable  to  subject  it  to  taxation.  But  as  to 
the  personal  property  of  a  resident  decedent,  wheresoever  situated, 
whether  within  or  without  the  State,  they  are  of  the  opinion  that  it  is 
subject  to  the  tax  imposed  by  the  act. 

The  judgment  below,  therefore,  should  be  so  modified  as  to  exclude 
from  its  operation  the  personal  property  in  New  Jersey,  and,  as  so 
modified,  it  should  be  affirmed,  without  costs  to  either  party  as  against 
the  other.^ 


FROTHING  HAM  v.    SHAW. 
Supreme  Judicial  Court  of  Massachusetts.     1899. 
[Reported   175  Massachusetts,  59.] 
Morton,  J.     This  is  a  petition  by  the  plaintiff,  as  executor  of  the 
will  of  one  Joseph  Frothingham,  for  instructions  in  regard  to  the  pay- 
ment of  a  collateral  inheritance  tax  on  the  residuary  legacies.     The 
case  was  heard  on  agreed  facts,  and  comes  here  by  successive  appeals 
from  decrees  of  the  probate  court  and  of  a  single  justice  of  this  court 
finding  that  the  tax  was  payable,  and  directing  the  executor  to  pay  the 
same.     At  the  time  of  his  death  the  testator  was  domiciled  at  Salem, 
in  this  Commonwealth,  and  his  estate,  except  certain  real  estate  situ- 

1  See  In  re  Bronson,  150  N.  Y.  1.  —  Ed. 


SECT.  II.]  FROTniX(;iiA:\r   r.   shaw.  283 

ated  here,  and  appraised  at  $2100,  and  cash  in  a  savings  bank  in 
Salem  amounting  to  S993,  was,  and  for  man}-  j^ears  had  been,  in  the 
hands  of  his  agents  in  New  York,  and  consisted  of  bonds  and  stock 
of  foreign  corporations,  a  certificate  of  indebtedness  of  a  foreign  cor- 
poration, bond  secured  b}'  mortgage  on  real  estate  in  New  Hampshire, 
the  makers  living  in  New  York,  and  of  cash  on  deposit  with  a  savings 
bank  and  with  individuals  in  Brooklyn  ;  the  total  being  upwards  of 
S4:0,000.  There  has  been  no  administration  in  New  York,  and  the 
petitioner  has  taken  possession  of  all  the  property  except  the  real 
€state,  and  has  paid  all  of  the  debts  and  legacies  except  the  residuary 
legacies.  None  of  the  legacies  are  entitled  to  exemption  if  otherwise 
liable  to  the  tax.  The  appellants  contend  that  the  stocks,  bonds,  etc., 
were  not  "  propert}'  within  the  jurisdiction  of  the  Commonwealth," 
within  the  meaning  of  St.  1891,  c.  425,  §  1,  and  that,  if  the}'  were,  the 
succession  took  place  by  virtue  of  the  law  of  New  York,  and  not  of 
this  State.  It  is  clear  that,  if  the  question  of  the  liability  of  the  tes- 
tator to  be  taxed  in  Salem  for  the  propert}-  had  arisen  during  his  life- 
time, he  would  have  been  taxable  for  it  under  Pub.  St.  c.  11,  §§4,  20, 
notwithstanding  the  certificates,  etc.,  were  in  New  York  (Kirkland  v. 
Hotchkiss,  100  U.  S.  491 ;  State  Tax  on  Foreign-Held  Bonds  Case, 
15  Wall.  300;  Cooley,  Tax'n  [2d  ed.],  371);  and  the  liability  would 
have  extended  to  and  included  the  bonds  secured  by  mortgage  (Kirk- 
land V.  Hotchkiss,  supra ;  State  Tax  on  Foreign-Held  Bonds  Case, 
supra/  Hale  r.  Commissioners,  137  Mass.  111).  It  is  true  that  the 
Public  Statutes  provide  that  personal  property,  wherever  situated, 
whether  within  or  without  the  Commonwealth,  shall  be  taxed  to  the 
owner  in  the  place  where  he  is  an  inhabitant.  But  it  is  obvious  that 
the  legislature  cannot  authorize  the  taxation  of  property  over  which  it 
has  no  control,  and  the  principle  underlying  the  provision  is  that 
personal  property  follows  the  person  of  the  owner,  and  properly  may 
be  regarded,  therefore,  for  the  purposes  of  taxation,  as  having  a  situs 
at  his  domicile,  and  as  being  taxable  there.  After  the  testator's  death 
the  property  would  have  been  taxable  to  his  executors  for  three  3'ears, 
or  till  distributed  and  paid  over  to  those  entitled  to  it,  and  notice 
thereof  to  the  assessors  ;  showing  that  the  fiction,  if  it  is  one,  is  con- 
tinued for  the  purposes  of  taxation  after  the  owner's  death.  Pub.  St. 
c.  11,  §  20,  cl.  7;  Hardy  v.  Inhabitants  of  Yarmouth,  G  Allen,  277. 
In  the  present  case  the  tax  is  not  ui)on  property  as  such,  but  upon  the 
privilege  of  disposing  of  it  by  will,  and  of  succeeding  to  it  on  the 
death  of  the  testator  or  intestate  ;  and  it  "  has,"  as  was  said  in  Minot 
V.  Winthrop,  infra,  "  some  of  the  characteristics  of  a  duty  on  the 
administration  of  the  estates  of  deceased  persons."  Minot  v.  Win- 
throp, 162  Mass.  113;  Callahan  ik  Woodbridge,  171  Mass,  595; 
Greves  v.  Shaw,  173  Mass.  205;  Moody  v.  Shaw,  173  Mass.  375.  In 
arriving  at  the  amount  of  the  tax,  the  property  within  the  jurisdiction 
of  the  Commonwealth  is  considered,  and  we  see  no  reason  for  suppos- 
ing that  the  legislature  intended  to  depart  from  the  principle  herutolbrc 


284  FKOTlll^vGIlAM    V.    SilAW.  [ciIAP.  II. 

adopted,  which  regards  personal  property,  for  the  purposes  of  taxation, 
as  having  a  situs  at  the  domicile  of  its  owner.  This  is  the  general  rule 
(Cooley,  Tax'n  [•2d  ed.],  372),  and,  though  it  may  and  does  lead  to 
double  taxation,  that  has  not  been  accounted  a  sufficient  objection  to 
taxing  personal  property  to  the  owner  during  his  life  at  the  place  of 
his  domicile,  and  we  do  not  see  that  it  is  a  sufficient  objection  to  the 
imposition  of  succession  taxes  or  administration  duties,  under  like 
circumstances,  after  his  death.  In  regard  to  the  mortgage  bonds,  it 
is  to  be  noted,  in  addition  to  what  has  been  said,  that  this  case  differs 
from  Callahan  v.  Woodbridge,  siqyra.  In  that  case  the  testator's 
domicile  was  in  New  York,  and  it  does  not  appear  from  the  opinion 
that  the  note  and  mortgage  deed  were  in  this  State.  In  this  case  the 
domicile  was  in  this  Commonwealtii,  and  we  think  that,  for  the  purposes 
of  taxation,  the  mortgage  debt  may  be  regarded  as  having  a  situs  here. 
This  is  the  view  taken  in  Hanson,  Death  Duties  (4th  ed.),  239,  240, 
which  is  cited  apparently  with  approval  by  Mr.  Dicey,  though  he  calls 
attention  to  cases  which  may  tend  in  another  direction.  See  Dicey, 
Confl.  Laws,  319,  note  1.  It  seems  to  us,  therefore,  that  for  the 
purposes  of  the  tax  in  question  the  property  in  the  hands  of  the 
executor  must  be  regarded  as  having  been  within  the  jurisdiction  of 
this  Commonwealth  at  the  time  of  the  testator's  death.  See  In  re 
Swift,  137  N.  Y.  77  ;  In  re   Miller's  Estate,  182  Pa.  St.  162. 

The  petitioner  further  contends  that  the  succession  took  place  by 
virtue  of  the  law  of  New  York.     But  it  is  settled  that  the  succession  to 
movable  property  is  governed  by  the  law  of  the  owner's  domicile  at 
the  time  of  his  death.     This,  it  has  been  often  said,  is  the  universal 
rule,  and  applies  to  movables  wherever  situated.     Stevens  v.  Gaylord, 
11  Mass.  256  ;  Dawes  v.  Head,  3  Pick.   129,  144,  145  ;  Fay  v.  Haven, 
3  Mete.  (Mass.)  109;  Wilkins  v.  Ellett,  9  Wall.  740;  id.  108  U.  S. 
256  ;  Freke  v.  Carbery,  L.  R.  16  Eq.  461 ;  Attorney-General  c.  Camp- 
bell, L.  R.  5  H.  L.  524;  Duncan  v.  Lawson,  41  Ch.  Div.  394  ;  Sill  v. 
Worswick,  1  H.  Bl.  690  ;  Dicey,  Confl.  Laws,  683  ;  Story,  Confl.  Laws 
(7th  ed.),  §§  380,  481.     If  there  are  movables  in  a  foreign  country, 
the  law  of  the  domicile  is  given  an  extra-territorial  eflTect  by  the  courts 
of  that  country,  and  in  a  just  and  proper  sense  the  succession  is  said 
to  take  place  by  force  of,  and  to  be  governed  by,  the  law  of  the  domi- 
cile.    Accordingly  it  has  been  held  that  legacy  and  succession  duties, 
as  such,  were  payable  at  the  place  of  domicile  in  respect  to  movable 
property  wherever  situated,  because  in  such  cases  the  succession  or 
legacy  took  effect  by  virtue  of  the  law  of  domicile.     Wallace  v.  Attor- 
ney-General (1865)  1  Ch.  App.  1  ;  Dicey,  Confl.  Laws,  785  ;  Hanson, 
Death  Duties  (4th  ed.),  423,  526.     With  probate  or  estate  or  adminis- 
tration duties,  as  such,  it  is  different.     They  are  levied  in  respect  of 
the  control  which  every  government   has  over  the  property   actually 
situated  within  its  jurisdiction,  irrespective  of  the  place  of  domicile. 
Laidley  v.   Lord  Advocate,   15  App.  Cas.  468,   483  ;  Hanson,  Death 
Duties  (4th  ed.),  2,  63.     Of  course,  any  state  or  country  may  impose 


3ECT.  II.J  FKOTIlINCillAM    I'.    fciJlAW.  285 

a  tax,  and  give   it   such    luune  or  no  name  as  it  chooses,  which   shall 
embrace,  if  so  intended,  the  various  grounds  upon  which  taxes  are  or 
may  be    levied    in    respect   of  tlie    devolution    of  estates   of  deceased 
persons,  and    whicli  shall   be   leviable  according  as  the  facts  in  each 
particular  case  warrant.     In  England,  for  instance,  the  "  estate  dutv," 
as  it  is  termed,  under  the  Finance  Act  of  181)4  (o7&o8  Vict.  c.  80),  has 
largely  superseded  the  probate  duty,  and  under  some  circumstances 
takes  the  place  of  the  legacy  and  succession  duty  also.    Hanson,  Death 
Duties  (4th  ed.),  62,  63,  81.     But,  whatever  the  form  of  the  tax,  the 
succession  takes  place  and  is  governed  by  the  law  of  the  domicile,  and 
if  the  actual  situs  is  in  a  foreign  country,  the  courts  of  that  country 
cannot  annul  the  succession  established   by  tlie  law  of  the  domicile. 
Dammert  o.  Osborn,  141   N.  Y.  564.     In"  further  ilhistration   of  the 
extent  to  which  the  law  of  the  domicile  operates,  it  is  to  be  noted  that 
the  domicile  is  regarded  as  the  place  of  i)rincipal  administration,  and 
any  other  administration  is  ancillary  to  that  granted  there.     Payment 
by  a  foreign  debtor  to  the  domiciliary  administrator  will  be  a  bar  to  a 
suit    brought    by  an   ancillary  administrator   subsequently    appointed. 
Wilkins   a.  Ellett,  st/pra;    Stevens  v.   Gaylord,  s«</>m;   Ilutchins    r. 
Bank,  12  Mete.  (Mass.)  421  ;  I\liirtin  r.  Gage,  147  Mass.  204.     And 
the  domiciliary  administrator  has  sufficient  standing  in  the  courts  of 
another  State  to  appeal  from  a  decree  appointing  an  ancillary  adminis- 
trator.    Smith  V.  Sherman,  4  Cush.  408.    Moreover,  it  is  to  lie  observed 
—  if  that  is  material  —  that  there  has  been  no  administration  in   New 
York,  that  the  executor  was  appointed   here,  and   has  taken   possession 
of  the  property  by  virtue  of  such  appointment,  and   must  distribute  it 
and  account  for  it  according  to  the  decrees  of  the  courts  of  this  Com- 
monwealth.    To  say,  therefore,  that  the  succession   has  taken  place  i)y 
virtue  of  the  law  of   New  York,  would   be  no   less  a  liction   than   the 
petitioner  insists  that    the  maxim,   Mo/nlia    sequuiitirr  2^'^^'S0)t(i)ii.    is 
when  applied  to  matters  of  taxation.     The  petitioner  contends  that  in 
Callahan  v.  Woodbridge,  svpra,  it  was  held  that  the  succession  to  the 
personal  property  in  this  State  took  place  by  virtue  of  the  law  of  this 
State,  although  the  testator  was  domiciled  in  New  York.     We  do  not 
so  understand  that  case.     That  case  and  Greves  v.  Shaw,  ,^i(pr<i,  and 
Moody  V.  Shaw,  supra,  rest  on  the  right  of  a  State  to  impose  a  tax  or 
duty  in  respect  to  the  passing  on  the  death  of  a  non-resident  of  personal 
property  belonging  to  him,  and  situated  within  its  jurisdiction.     We 
think  that  the  decree  should  be  affirmed.'  A'o  ordered. 

1   For  the  EnglLsli  <lo.Hrin.-s  as  to  th..  .-fll-ct  of  their  R.-venue  Laws  on  lu.ii-rcsi.U^nts 
and  on  fonnfjn  property,  see  Dicey,  Conflict  of  Laws,  78L 

For  cases  on  the  Income  Tux,  .see  Calcutta  Jute  Mills  r.  Nicholson  1  K.v  I)  4->8- 
Colquhoun  V.  Brooks,  14  App.  Cas.  493.  On  Prohate  Dutv,  .see  Att'.-Gen  r  Hope' 
10.  M.  &K.  530;  Sudeley  .;.  Att.-CJen.,  [1897]  A.  C.  ll".  On  Lejjncy  Dt.ty,  see 
lliompson  V.  Adv.-Gen.,  12  CI.  &  F.  1  ;  ChaMic^id  r.  I^erchfoldt.  L.  R  7  Cji  19'^ 
On  Succession  Duties,  .see  Att.-Gen.  .;.  Campbell,  L.  li.  5  H.  L.  524  ;  Wallace  v.  Att^- 
Oen.,  L.  R.  1  Ch.  1.  —  Ki>. 


286  MATTEK    OF    COOLEY.  [CHAP.  II. 


MATTER  OF   COOLEY. 

Court  of  Appeals,  Xew  York.     1906. 

[Reported  186  iV.  Y.  220.] 

HiscoCK,  J.  The  appellants  complain  because  in  fixing  the  transfer 
tax  upon  certain  sliares  of  tlie  capital  stock  of  the  Boston  and  Albany 
Railroad  Company  which  belonged  to  the  estate  and  passed  under  the 
will  of  tlie  deceased  who  was  a  non-resident,  said  stock  lias  been  ap- 
praised at  its  full  market  value  as  representing  an  interest  in  the  prop- 
erty of  said  corporation  situate  both  in  the  State  of  New  York  and? 
elsewhere.  It  is  insisted  by  them  that  under  the  peculiar  facts  of  thi& 
case  the  valuation  placed  for  such  purpose  upon  the  stock  should  not 
have  been  predicated  upon  the  idea  that  the  latter  represented  an  in- 
terest in  all  of  the  property  of  said  corporation,  but  should  have  been 
fixed  upon  the  theory  that  it  represented  an  interest  in  only  a  jxtrtioa 
of  said  propert}-. 

I  think  that  their  complaint  is  well  founded  and  that  the  order 
a[)pealed  from  should  be  reversed  and  the  assessment  corrected 
accordingl}-. 

The  Boston  and  Albany  Railroad  Company  is  a  consolidation  formed, 
by  the  merger  of  one  or  more  New  York  corporations  and  one  Massa- 
chusetts corporation.  The  merger  was  authorized  and  tlie  said  consoli- 
dated corporation  duly  and  separately  created  and  organized  under  the 
laws  of  each  state.  It  was,  so  to  speak,  incorporated  in  duplicate. 
There  is  but  a  single  issue  of  capital  stock  representing  all  the  prop-^ 
crtv  of  the  consolidated  and  dual  organization.  Of  the  track  mileage 
about  five-sixths  is  in  Massachusetts  and  one-sixth  in  New  Y'ork.  The 
principal  offices,  including  the  stock  transfer  office,  are  situated  in 
Boston,  and  there  also  are  regularly  held  the  meetings  of  its  stock- 
holders and  directors.  The  deceased  was  a  resident  of  the  State  of 
Connecticut,  and  owned  four  hundred  and  twenty-six  shares  of  the 
capital  stock,  the  value  of  which  for  the  purposes  of  the  transfer  tax 
was  fixed  at  the  full  market  value  of  $252.50  per  share  of  the  par  value 
of  $100. 

The  provisions  of  the  statute  (L.  1896,  ch.  908,  §  220,  as  amd.  L. 
1897,  ch.  284,  §  2),  authorizing  the  imposition  of  this  tax  are  familiar,, 
and  read  in  part  as  follows  : 

"  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of  any 
property,  real  or  personal,  of  the  value  of  five  hundred  dollars  or  over, 
or  of  any  interest  therein  ...   in  the  following  cases  :   .   .    . 

"  2.  When  the  transfer  is  by  will  or  intestate  law,  of  property  within 
the  State,  and  the  decedent  was  a  non-resident  of  the  State  at  the  time 
of  his  death." 

The  present  assessment  is  under  the  last  clause,  and  as  already  inti- 


SECT.  II.]  MATTER  OF  COOLEY.  287 

mated,  the  sole  question,  stated  in  practical  form,  is  wliether  tha 
authorities  of  this  State  ought  to  levy  a  tax  upon  the  full  value  of  de- 
cedent's holdings,  recognizing  simply  the  New  York  corporation  and 
regarding  it  as  the  sole  owner  of  all  of  the  property  of  the  doubly  in- 
corporated New  York-Massachusetts  corporation,  or  whetiier  they 
should  limit  the  tax  to  a  portion  of  the  total  value,  upon  the  theory  that 
the  company  holds  its  property  in  Massachusetts  at  least  under  its 
incorporation  in  that  State. 

By  seeking  the  aid  of  our  laws  and  becoming  incorporated  under 
tiiem,  the  consolidated  Boston  and  Albany  Railroad  Company  became 
a  domestic  corporation.      (.Alatler  cjf  Sage,  70  N.  Y.  220.) 

The  decedent,  therefore,  as  the  owner  of  Boston  and  Albany  stock, 
may  l)e  regarded  as  holding  stock  in  a  doujestic  corporation,  and  it  is  so 
clearly  settled  that  we  need  only  state  ilie  pioiiositiun  that  capital  stock 
in  a  domestic  corporation,  although  held  by  a  non-resident,  will  be  re- 
garded as  having  its  siti/s  where  the  corporation  is  organized,  and  is, 
therefore,  taxable  in  this  State.      (Matter  of  Bronson,  150  N.  Y.  1.) 

There  is,  therefore,  no  question  but  that  the  decedent,  holding  stock 
in  the  Boston  and  Albany  road,  which  was  incorporated  under  the  laws 
of  this  State,  left  "  property  within  the  State  "  which  is  taxable  here. 
There  is  no  doubt  about  the  meaning  of  "  property  within  the  State," 
as  applied  to  this  situation,  or  that  it  justifies  a  taxation  by  our  au- 
thorities of  decedent's  interest  as  a  shareholder  in  the  corporation 
created  under  the  laws  of  this  State.  The  only  doubt  is  as  to  the 
extent  and  value  of  that  interest  for  the  purposes  of  this  proceeding. 
For,  although  the  tax  is  upon  the  transfer  and  not  upon  the  pro|)erty 
itself,  still  its  amount  is  necessarily  measuretl  by  the  value  of  the 
property  transferred,  and,  therefore,  we  come  to  consider  briefly  tiie 
nature  of  the  stock  here  assessed  as  property  and  the  theory  upon 
which  its  value  should  be  computed. 

The  general  nature  of  a  shareholder's  interest  in  the  capital  stock  of 
a  cor|)oration  is  easily  understood  and  defined.  In  Plympton  v.  Bige- 
low  (93  N.  Y.  592j  it  is  said  that  '•  The  right  which  a  shareholder  in  a 
corporation  has  by  reason  of  his  ownership  of  shares  is  a  right  to  [)ar- 
ticipate  according  to  the  amount  of  his  stock  in  the  suri)lus  [profits  of 
the  corporation  on  a  division,  and  ultimately  on  its  dissolution,  in  the 
assets  remaining  after  payment  of  its  debts." 

In  Jermain  v.  L.  S.  &  M.  S.  Ry.  Co.  (91  N.  Y.  483,  491)  it  was 
said  :  "  A  share  of  stock  represents  the  interest  which  the  shareholder 
has  in  the  capital  and  net  earnings  of  the  corporation." 

Therefore,  since  the  shares  of  capital  stock  under  discussion  repre- 
sented a  certain  interest  in  the  sur[)lus  of  assets  over  liabilities  of  the 
Boston  and  Albany  Railroad  Company,  the  value  of  that  stock  is  to  be 
decided  by  reference  to  the  amount  of  property  which  said  railroad  com- 
pany as  incorporated  in  this  State  is  to  be  regarded  as  owning  for 
the  purposes  of  tiiis  proceeding. 


288  MATTER    OF    COOLEY.  [CHAP.  II. 

In  the  majority  of  cases  at  least  a  corporation  has  but  a  single 
coroorate  creation  and  existence  under  the  laws  of  one  State,  and  by 
virtue  of  such  single  existence  owns  all  of  its  corporate  property. 
There  is  no  difficulty  in  determining  in  such  a  case  that  a  shareholder 
under  such  an  incorporation  has  an  interest  in  all  of  the  corporate 
property  wherever  and  in  how  many  different  States  situated.  I  shall 
iiave  occasion  to  refer  to  that  principle  hereafter  in  another  connection. 
Even  in  the  case  of  a  corporation  incorporated  and  having  a  separate 
existence  under  the  laws  of  more  than  one  State,  the  stockholder  would 
for  some  purposes  be  regarded  as  having  an  interest  in  all  the  cor- 
porate property  independent  of  tlie  different  incorporations.  In  tlie 
present  case  the  decedent,  by  virtue  of  his  stock  as  between  him 
and  the  corporation,  would  be  regarded  as  having  an  interest  in  all  of 
its  property  and  entitled  to  the  earnings  thereon  when  distributed  as 
dividends  and  to  his  share  of  the  surplus  upon  dissolution  and  liquida- 
tion proceedings  independent  of  the  fact  that  there  were  two  separate 
incorporations. 

But,  as  it  seems  to  me,  different  considerations  and  principles  apply 
to  this  proceeding  now  before  us  for  review.     Our  jurisdiction  to  assess 
decedent's  stock  is  based  solely  and  exclusively  upon  the  theory  that 
it  is  held  in  the  Boston  and  Albany  Railroad  Company  as  a  New  York 
corporation.     The  authorities  are  asserting  jurisdiction  of  and  assessing 
his  stock  only  because  it  is  held  in  the  New  York  corporation  of  the 
Boston  and  Albany  Railroad  Company.     But  we  know  that  said  com- 
pany is  also  incorporated  as  a  Massachusetts  corporation,  and  presumr 
ably  by  virtue  of  such  latter  incorporation  it  has  the  same  powers  of 
owning  and  managing  corporate  property  which  it  possesses  as  a  New 
York  corporation.     In  fact  the  location  of  physical  property  and  the 
exercise  of  various  corporate  functions  give  greater  importance  to  the 
Massachusetts  than  to  the  New  York  corporation,  and  the  problem  is 
whether  for  the  purpose  of  levying  a  tax  upon  decedent's  stock  upon 
the  theory  that  it  is  held  in  and  under  the  New  York  corporation  we 
ought  to  say  that   such  latter   corporation  owns  and  holds  all   of  the 
property  of  the  consolidated  corporation  wherever  situated,  thus  entirely 
ignoring  the  existence  of  and  the  ownership  of  property  by  the  Massa- 
chusetts corporation.     It  needs  no  particular  illumination  to  demon- 
strate that  if  we  take  such  a  view  it  will  clearly  pave  tlie  way  to  a 
corresponding  view  by   the  authorities  and  courts  of  Massachusetts 
that  the  corporation  in  that  State  owns  all  of  the  corporate  property 
wherever  situated,  and  we  shall  then  further  and  directly  be  led  to  the 
unreasonable  and  illogical  result  that  one  set  of  property  is  at  the  same 
time  solely  and  exclusively  owned  by  two  different  corporations,  and 
that  a  person  holding  stock  should  be  assessed  upon  the  full  value  of 
his  stock  in  each  jurisdiction.     Whether  we  regard  such  a  tax  as  is 
here  being  imposed,  a  recompense  to  the  State  for  protection  afforded 
during  the  life  of  the  decedent  or  as  a  condition  imposed  for  creating 


SECT.  II.]  MATTER  OF  COOLEY.  289 

and  allowing  certain  rights  of  transfer  or  of  succession  to  property  upon 
death,  we  shall  have  each  State  exacting  full  compensation  upon  one 
succession  and  a  clear  ease  of  double  taxation.  And  if  the  corporation 
had  been  compelled  for  sutiicient  reasons  to  take  out  incorporation  in 
six  or  twenty  other  States  eac-h  one  of  them  might  take  tlie  same  view 
and  insist  upon  the  same  exaction  until  the  value  of  the  i)roperty  was 
ill  whole  or  large  proportion  exhausted  in  paying  for  the  privilege 
of  succession  to  it.  While  undoubtedly  the  legislative  authority  is 
potent  enough  to  prescribe  and  enforce  double  taxation,  it  is  plain  that, 
measured  by  ordinary  [)rineii)les  of  justice,  the  result  suggested  would 
be  inequitable  and  might  be  seriously  burdensome. 

Double  taxation  is  one  which  the  courts  should  avoid  whenever  it  is 
possible  within  reason  to  do  so.     (Matter  of  James,  144  N.  Y.  6,  11.) 

It  is  never  to  be  presumed.  Sometimes  tax  laws  have  that  effect, 
but  if  they  do  it  is  because  the  legislature  has  unmistakably  so  enacted. 
All  presumptions  are  against  such  an  imposition.  (Tennessee  v.  Whit- 
worth,  117  U.  S.  129.) 

The  law  of  taxation  is  to  be  construed  strictly  against  the  State  in 
favor  of  the  taxpayer,  as  represented  by  the  executor  of  the  estate. 
(Matter  of  Fayerweather,  143  N.  Y.   114.) 

It  seems  pretty  clear  that  within  the  principles  of  the  foregoing  and 
many  other  cases  which  might  be  cited,  we  ought  not  to  sanction  a 
course  which  will  lead  to  a  tax,  measured  by  the  full  value  of  the  dece- 
dent's stock  in  each  State  upon  the  conflicting  theories  that  the  corpo- 
ration in  that  State  owns  all  of  the  property  of  the  consolidated 
company,  unless  there  is  something  in  the  statute,  or  decisions  under 
the  statute,  which  compels  us  so  to  do.  I  do  not  think  there  is  in 
either  place  such  compelling  authority. 

No  doubt  is  involved,  as  it  seems  to  me,  about  the  meaning  and  ap- 
plication of  the  statute.  The  decedent's  stock  was  "  propeity  within 
the  State,"  which  had  its  situs  here  as  being  held  in  the  New  York  cor- 
poration, and  the  transfer  of  it  was  taxable  here.  There  can  be  no 
dispute  about  that.  The  question  is  simply  over  the  extent  and  value 
of  his  interest  as  such  stockholder,  in  view  of  the  other  incorporation 
in  Massachusetts.  I  see  nothing  in  the  statute  which  prevents  us  from 
paying  decent  regard  to  the  principles  of  interstate  comity,  and  from 
adopting  a  policy  which  will  enable  each  State  fairly  to  enforce  its  own 
laws  without  oppression  to  the  subject.  This  result  will  be  attained  bv 
regarding  the  New  York  corporation  as  owning  the  property  situate  in 
New  York  and  the  Massaciiusetts  corporation  as  owning  tliat  situate  in 
Massachusetts,  and  each  as  owning  a  siiare  of  any  property  situate  out- 
side of  either  State  or  moving  to  and  fro  between  the  two  States,  and 
assessing  decedent's  stock  upon  that  theory.  That  is  the  obvious  basis 
for  a  valuation  if  we  are  to  leave  any  room  for  the  Massachusetts 
corporation  and  for  a  taxation  Ity  that  State  similar  in  principle  to  our 
own  without  double  taxation. 


290  MATTER    OF    COOLEY.  [cHAP.  II. 

Some  illustrations  may  be  referred  to  which  by  analogy  sustain  the 
general  principles  involved. 

Where  a  tax  is  levied  in  this  State  upon  the  capital  or  franchises  of 
a  corporation  organized  as  this  railroad  was,  the  tax  is  levied  upon  an 
equitable  basis.  Thus  by  the  provisions  of  section  6  of  chapter  19  of 
the  Laws  of  1869,  under  which  tiio  Boston  and  All)any  railroad  was 
organized,  the  assessment  and  taxation  of  its  capital  stock  in  this  State 
is  to  be  in  the  proportion  "that  tlie  number  of  miles  of  its  railroad 
situated  in  this  State  bears  to  the  number  of  miles  of  its  railroad 
situated  in  the  other  State,''  and  under  section  182  of  the  General  Tax 
Law  of  the  State  of  New  York  tlie  franchise  tax  of  a  corporation  is. 
based  upon  the  amount  of  capital  within  the  State. 

Affain,  assume  tliat  for  purposes  of  dissolution  or  otherwise,  re- 
ceivers were  to  be  appointed  of  the  Boston  and  Albany  railroad,  there 
can  be  no  doubt  that  the  receivers  of  it  as  a  New  York  corporation 
would  be  appointed  by  the  courts  of  that  State,  and  the  receivers  of  it 
as  a  Massachusetts  corporation  would  be  api)oiuted  by  the  courts  of 
that  State,  and  that  the  courts  would  hold  that  in  the  discharge  of  their 
duties  the  New  York  receivers  should  take  possession  of  and  admin- 
ister upon  the  property  of  the  New  York  corporation  within  the  limits 
of  that  State,  and  would  not  permit  the  Massachusetts  receivers  ta 
come  within  its  confines  and  interfere  with  such  ownership,  and  the 
Massachusetts  courts  would  follow  a  similar  policy.  Why  should  not 
the  State  authorities  for  purposes  of  this  species  of  taxation  and  valua- 
tion, involved  therein,  adopt  a  similar  theory  of  division  of  property? 

We  are  not  apprehensive  lest,  as  suggested,  New  York  corpora- 
tions may  take  out  incorporation  in  other  States  for  tlie  purpose  of  ex- 
emptimi  transfers  of  their  capital  stock  from  taxation  under  the 
principles  of  this  decision.  We  do  not  regard  our  decision  as  giving 
encouragement  to  any  such  course.  It  is  based  upon  and  limited  by 
the  facts  as  they  are  here  presented,  and  there  is  no  question  whatever 
but  tluit  tlie  Boston  and  Albany  railroad,  in  good  faith  and  for  legitimate 
reasons,  was  equally  and  contemporaneously  created  both  as  a  New 
York  and  a  Massachusetts  corporation.  It  can  no  more  be  said  that 
beins;  originally  and  properly  a  New  York  corporation  it  subsequently 
and  incidentally  became  a  iNIassachusetts  one  than  could  be  maintained 
the  reverse  of  such  i)roposition.  If  in  the  future  a  corporation  created 
and  organized  under  the  laws  of  this  State,  or  properly  and  really  to 
be  regarded  as  a  New  York  coi-poration,  shall  see  fit  either  for  the  pur- 
pose suggested,  or  for  any  other  reason  subsequently  and  incidentally 
and  for  ancillary  reasons,  to  take  out  incorporation  in  another  State,  a 
case  would  arise  not  fixlling  within  this  decision. 

But  it  is  said  that  this  court  has  already  made  decisions  which  pre- 
vent it  from  adopting  such  a  construction  as  I  have  outlined,  and 
reference  is  made  to  Matter  of  Brouson  (150  N.  Y.  1)  and  Matter  of 
Palmer  (183  N.Y.  238). 


SECT.  II.]  MATTER  OP  COOLEY.  291 

I  do  not  find  anything  in  those  decisions  which,  interpreted  as  a 
whole,  with  reference  to  the  facts  there  being  discussed,  conflicts  with 
the  views  which  I  have  advanced. 

In  the  first  case  the  question  arose  whether  a  tax  might  V)e  imposed 
upon  a  transfer  of  a  non-resident  decedent's  residuary  estate  which 
'•  consisted  in  shares  of  the  capital  stock  and  in  the  bonds  of  corpora- 
tions incorporated  under  the  laws  of  Lljis  State."  So  far  as  the  discus- 
sion relates  to  the  question  of  taxing  the  bonds,  it  is  immaterial.  It 
was  held  that  the  shares  of  capital  stock  were  property  which  was  taxa- 
ble, it  being  said  :  ••  The  shareholders  are  persons  who  are  interested  in 
the  operation  of  the  corporate  property  and  franchises,  and  their  shares 
actually  represent  undivided  interests  in  the  corporate  enterprise.  The 
corporation  has  tlie  legal  title  to  all  the  properties  acquired  and  appurte- 
nant, but  it  holds  them  for  the  pecuniary  benefit  of  those  persons  who 
hold  the  capital  stock.  .  .  .  Each  share  represents  a  distinct  interest 
in  the  whole  of  the  corporate  property."  In  other  words,  Judge  Gray, 
in  writing  the  majority  opinion,  was  discussing  the  situation  of  a  share- 
holder in  a  domestic  corporation  which,  so  far  as  appears,  was  not 
incorporated  under  the  laws  of  another  State.  Under  such  circum- 
stances, of  course,  the  New  York  corporation  would  be  the  owner  of 
all  the  property  there  was,  and  the  shareholder's  interest  in  such  corpo- 
ration would  represent  his  interest  in  all  of  said  property  and  be  fairly 
and  justly  taxable  upon  its  full  amount  and  value.  No  such  situation  was 
presented  as  here  arises.  There  was  no  second  or  third  corporation 
under  the  laws  of  another  State,  which  corporation  might  just  as  fairly 
be  said  to  lie  the  owner  of  all  the  property  as  the  New  York  corpora- 
tion, thus  raising  the  question  here  presented  whether  each  corporation 
should  be  regarded  as  owning  and  holding  all  of  the  property  there 
was  for  the  purpose  of  laying  the  basis  for  taxation,  or  whether  we 
should  adopt  an  equitable  and  reasonat)le  view,  giving  credit  to  each 
corporation  for  the  purpose  of  taxation  of  owning  some  certain  portion 
of  the  entire  propert}'. 

In  the  Palmer  case  again  the  question  arose  over  taxing  shares  of 
stock  held  by  a  non-resident  decedent  in  a  domestic  corporation  which 
was  not  proved  or  considered  to  have  been  incorporated  under  the 
laws  of  anotlier  State.  It  was  insisted  that  the  amount  of  the  tax 
should  be  reduced  by  the  proportion  of  property  owned  l)y  the  corpo- 
ration and  located  in  other  States,  and  this  contention  was  overruled, 
and,  as  it  seems  to  me,  for  a  perfectly  good  reason  upon  the  facts  in 
that  case  and  which  is  not  ap|)licat)le  to  the  facts  here.  As  staled, 
there  was  a  single  incorporation  under  the  laws  of  tliis  State,  and  that 
domestic  corporation  owned  all  of  the  property  in  wliatever  State  situ- 
ated. Its  corporate  origin  was  under  the  laws  of  this  State,  and  there 
its  cor|)orate  existence  was  centred.  It  just  as  fully  and  complctclv 
owned  and  managed  [iropcM'ty  situated  in  tiie  State  of  Ohio  as  if  it  was 
situated  in  tlie  State  of  New  York,  and  if  the  property  in  the  foreign 


292  MATTER    OF    COOLEY.  [ciIAr.  II. 

State  was  reduced  to  money,  such  money  would  be  turned  into  its 
treasury  in  tine  State  of  New  York.  Under  such  circumstances  there 
was  nothing  else  that  could  reasonably  be  held  than  that  the  corpora- 
tion owned  all  property  wherever  situated,  and  that  the  sharehold- 
er's interest  in  such  corporation  represented  and  was  based  upon  such 
ownership  of  all  the  property.  Tliere  was  no  doiil)le  incorporation  and 
no  chance  for  conflict  between  an  incorporation  under  the  laws  of  this 
State  and  a  second  one  existing  under  the  laws  of  another  State,  which 
must  either  be  reconciled  by  a  just  regard  for  the  rights  of  both  States 
and  the  rights  of  the  incorporation  under  each,  or  else  double  taxation 
imposed  upon  a  sliareholder. 

It  is  also  argued  that  the  courts  of  Massachusetts  have  passed  upon 
the  very  contention  here  being  made  by  appellants,  and  in  the  case  of 
Moody  V.  Shaw  (173  Mass.  375)  have  rejected  the  claim  that  the  valu- 
ation of  stock  in  this  same  corporation  for  the  purposes  of  transfer 
taxation  in  Massacliusetts  should  be  based  upon  any  apportionment  of 
property  between  the  Massachusetts  and  New  York  corporations. 
The  opinion  in  that  case  does  not  seem  to  warrant  any  such  con- 
struction. Apparently  the  only  question  under  discussion  was  whether 
the  transfer  of  stock  in  such  corporation  was  taxable  at  all  in  Massa- 
chusetts, and  the  question  of  any  apportionment  was  not  passed  upon. 
Such  expressions  as  are  found  in  the  opinion  touching  that  point  cer- 
tainly do  not  indicate  to  my  mind  that  if  involved  and  passed  upon  it 
would  have  been  decided  adversely  to  the  views  here  expressed. 

Lastly,  it  is  urged  that  there  will  be  great  practical  difficulty  in 
making  an  apportionment  of  property  for  the  purposes  of  valuation  and 
taxation  upon  the  lines  suggested,  and  the  learned  counsel  for  the  re- 
spondent has  suggested  many  difficulties  and  absurdities  claimed  to  be 
incidental  to  such  course  of  procedure.  Most  of  them  certainly  will 
not  arise  in  this  case  and  they  probably  never  will  in  any  other.  Of 
course  an  appraisal  based  upon  an  apportionment  of  the  entire  prop- 
erty of  the  consolidated  company  between  the  New  York  and  Massachu- 
setts corporations  may  be  made  a  source  of  much  labor  and  expense  if 
the  parties  so  desire.  Possibly  it  might  be  carried  to  the  extent  of  a  de- 
tailed inventory  and  valuation  of  innumerable  pieces  of  property.  Upon 
the  other  hand,  an  apportionment  based  upon  trackage  or  figures  drawn 
from  the  books  or  balance  sheets  of  the  company  may  doubtless  be 
easily  reached  which  will  be  substantially  correct,  and  any  inaccuracies 
of  which  when  reflected  in  a  tax  of  one  per  cent  upon  426  shares  of 
stock  will  be  inconsequential. 

The  order  of  the  Appellate  Division  and  of  the  Surrogate's  Court  of 
the  county  of  New  York  should  be  reversed,  with  costs,  and  the  pro- 
ceedings remitted  to  said  Surrogate's  Court  for  a  reappraisal  of  the 
stock  in  question  in  accordance  with  the  views  herein  expressed. 

CuLLEN,   Ch.  J.,   Gray,  O'Brien,  and  Edward  T.  Bartlett,  JJ., 
concur ;  Werner  and  Chase,  JJ.,  dissent. 
Order  reversed,  etc. 


SECT.   III.]  CALDWELL   V.   VAN   VLISSENGEN.  293 


SECTION  III. 

TEMPORARY   PRESENCE. 


CALDWELL  v.  VAN   VLISSENGEN. 


^ 


Chancery.     1851. 
[Reported  9  Hare,  415.] 

Turner,  V.  C.^  The  plaintiffs  in  these  causes  are  the  assignees  of 
a  patent  granted  to  James  Lowe  in  the  year  1838,  for  a  mode  of  pro- 
pelling vessels  by  means  of  one  or  more  curved  blades  set  or  affixed 
on  a  revolving  shaft  below  the  water-line  of  the  vessel,  and  running 
from  stem  to  stern  of  the  vessel.  The  defendants  in  the  first  two 
causes  are  owners  of  vessels  trading  between  Holland  and  this  country, 
and  the  defendant  in  the  third  cause  was  the  captain  of  a  vessel  en- 
gaged in  the  same  trade.  .  .   . 

It  was  insisted,  on  the  part  of  the  defendants,  that  there  was  in 
each  of  these  cases  a  sufficient  ground  for  the  interference  of  the  court 
being  withheld.  In  the  first  place,  the  ground  is  thus  stated  in  the 
affidavit  of  Izebbe  Swart,  of  Amsterdam.  He  says,  in  his  affidavit, 
that  he  is  the  master  of  the  ship  called  the  Burgemeester  Huidekoper, 
.  .  .  that  the  vessel  belongs  to  a  company  formed  in  Holland ;  .  .  . 
that  some  time  before  the  vessel  was  built  and  fitted,  the  same  pro- 
pelling power  with  that  used  for  the  vessel  had  been  openly  used  and 
exercised  in  Holland  ;  .  .  .  that  no  patent  has  been  granted,  or,  as  he 
is  informed  and  believes,  applied  for  in  Holland,  for  or  in  respect  of 
such  alleged  invention.   .   .    . 

It  is  to  be  observed,  that  in  none  of  these  cases  is  it  attempted  to  be 
denied,  on  the  part  of  the  defendants,  that  the  screw  propellers  used 
in  their  respective  vessels  fall  within  the  invention  claimed  by  this 
patent ;  and  after  anxiously  considering  the  case,  I  am  of  opinion  that 
I  cannot  withhold  these  injunctions,  upon  the  grounds  which  are  stated. 

I  take  the  rule  to  be  universal,  that  foreigners  are  in  all  cases  sub- 
ject to  the  laws  of  the  country  in  which  they  may  happen  to  be  ;  and  if 
in  any  case,  when  they  are  out  of  their  own  countr}',  their  rights  are 
regulated  and  governed  by  their  own  laws,  I  take  it  to  be  not  by  force 
of  those  laws  themselves,  but  by  the  law  of  the  country  in  which  they 
may  be,  adopting  those  laws  as  part  of  tlieir  own  law  for  the  purpose 
of  determining  such  rights.  Mr.  Justice  Story,  in  his  Treatise  on  the 
"  Conflict  of  Laws,"  addressing  liimself  to  this  subject  (s.  541),  says: 
"  In  regard  to  foreigners  resident  in  a  country,  although  some  jurists 
deny  the  right  of  a  nation  generally  to  legislate  over  them,  it  would 

^  Part  of  the  oiiiiiioii  is  dmitteJ.  —  Eli. 


lA'-"^ 


294  CALDWELL    V.    VAN   VLISSENGEN.  [CHAP.    II. 

seem  clear,  upon  general  principles  of  international  law,  that  such  a 
right  does  exist,  and  the  extent  to  which  it  should  be  exercised  is  a 
matter  purely  of  municipal  arrangement  and  policy.  Huberus  lays 
down  the  doctrine  in  his  second  axiom  :  '  All  persons  who  are  found 
within  the  limits  of  a  government,  whether  their  residence  is  perma- 
nent or  temporary-,  are  to  be  deemed  subjects  thereof  BouUenois  says, 
'  That  the  sovereign  has  a  right  to  make  laws  to  bind  foreigners  in 
relation  to  their  property-  within  his  domains,  in  relation  to  contracts 
and  acts  done  therein,  and  in  relation  to  judicial  proceedings  if  they 
implead  before  his  tribunals.  And  further,  that  he  may  of  strict  right 
make  laws  for  all  foreigners  who  merely  pass  through  his  domains, 
although  commonly  this  authority  is  exercised  only  as  to  matters  of 
police.'  Vattel  asserts  the  same  general  doctrine,  and  says  that  for- 
eigners are  subject  to  the  laws  of  a  State  while  they  reside  in  it." 
Page  789,  2d  edit.  Lond.  In  this  country,  indeed,  the  position  of  for- 
eigners is  not  left  to  rest  upon  this  general  law,  but  is  provided  for  by 
statute  ;  for,  by  the  32  Hen.  VIII.,  c.  16,  s.  9,  it  is  enacted,  "  that  every 
alien  and  stranger  born  out  of  the  King's  obeisance,  not  being  denizen, 
which  now  or  hereafter  shall  come  in  or  to  this  realm  or  elsewhere 
■within  the  King's  dominions,  shall,  after  the  1st  of  September  next 
coming,  be  bounden  by  and  unto  the  laws  and  statutes  of  this  realm, 
and  to  all  and  singular  the  contents  of  the  same.'"  Natural  justice, 
indeed,  seems  to  require  that  this  should  be  the  case  ;  when  countries 
extend  to  foreigners  the  protection  of  their  laws,  they  may  well  require 
obedience  to  those  laws  as  the  price  of  that  protection.  These  de- 
fendants, therefore,  whilst  in  this  country,  must,  I  think,  be  subject  to 
its  laws.   .   .  . 

Undoubtedly  this  grant  gives  to  the  grantee  a  right  of  action  against 
persons  who  infringe  upon  the  sole  and  exclusive  right  purported  to  be 
granted  by  it.  Foreigners  coming  into  this  country  are,  as  I  appre- 
hend, subject  to  actions  for  injuries  done  by  them  whilst  here  to  the 
subjects  of  the  crown.  Why,  then,  are  they  not  to  be  subject  to 
actions  for  the  injury  done  by  their  infringing  upon  the  sole  and  ex- 
clusive right,  which  I  have  shown  to  be  granted  in  conformity  with 
the  laws  and  constitution  of  this  country?  And  if  they  are  sub- 
ject to  such  actions,  why  is  not  the  power  of  this  court,  which  is 
founded  upon  the  insufficiency  of  the  legal  remedy,  to  be  applied 
against  them  as  well  as  against  the  subjects  of  the  crown.  It  was 
said  that  the  prohibitory  words  of  the  patent  were  addressed  only  to 
the  subjects  of  the  crown  ;  but  these  prohibitory  words  are  in  aid  of  the 
grant  and  not  in  derogation  of  it;  and  they  were  probably  introduced 
at  a  time  when  the  prohibition  of  the  crown  could  be  enforced  person- 
ally against  parties  who  ventured  to  disobey  it.  The  language  of  this 
part  of  the  patent,  therefore,  does  not  appear  to  me  to  alter  the  case. 

In  the  course  of  the  argument  upon  these  motions,  I  put  the  ques- 
tion whether,  in  the  case  of  a  railway  engine  patented  in  England,  and 
not  in  Scotland,  the  engine,  if  made  in  Scotland,  could  be  permitted 


SECT.    III.]  CALDWELL    V.    VAN   VLISSENGEN.  295 

to  run  into  England  ;  and  I  might  have  added,  whether,  if  the  inven- 
tion we  are  now  considering  was  patented  in  England  and  Scotland, 
and  not  in  Ireland,  steamboats  propelled  b}'  means  of  it  would  be  per- 
mitted to  run  from  Dublin  into  Holyhead,  Bristol,  and  Glasgow.  The 
answer  which  I  received  to  this  question  was,  that  in  the  case  of  patents 
there  was  a  difference  between  .Scotland  and  foreign  countries  ;  that  a 
prior  user  in  Scotland  would,  although  a  prior  user  in  foreign  countries 
would  not,  invalidate  an  English  patent ;  but  this  answer  does  not  ap- 
pear to  me  to  meet  the  question.  What  previous  user  will  invalidate  a 
patent,  and  what  user,  if  anj-,  can  be  permitted  in  contravention  of 
the  patent  right,  are  differeut  questions  depending  on  wholly  different 
considerations  ;  the  one  upon  the  extent  of  previous  knowledge,  the 
other  upon  the  effect  of  the  grant.   .   .  . 

In  the  argument  on  the  part  of  the  defendants,  much  was  said  on 
the  hardship  of  this  court's  interfering  against  them,  and  upon  the 
inconveniences  which  would  result  from  it,  and  some  reference  was 
made  to  the  policy  of  this  country  ;  but  it  must  be  remembered  that 
British  shii)S  certainlv  cannot  use  this  invention  without  the  license  of 
the  patentees,  and  the  burthens  incident  to  such  license  ;  and  foreign- 
ers cannot  justly  complain  that  their  ships  are  not  permitted  to  enjoy, 
without  license  and  without  payment,  advantages  which  the  ships  of 
this  country  cannot  enjoy  otherwise  than  under  license  and  upon  pay- 
ment. It  must  be  remembered  that  foreigners  may  take  out  patents  in 
this  country,  and  thus  secure  to  tliemselves  the  exclusive  use  of  their 
inventions  within  her  Majesty's  dominions  ;  and  that  if  they  neglect  to 
do  so,  they,  to  this  extent,  withhold  their  invention  from  the  subjects 
of  this  country.  It  is  to  be  observed  also,  that  the  enforcement  of  the 
exclusive  right  under  a  patent  does  not  take  away  from  foreigners  any 
privilege  which  they  ever  enjoyed  in  this  country  ;  for,  if  the  invention 
was  used  by  them  in  this  country  before  tlie  granting  of  the  patent, 
the  patent,  I  apprehend,  would  be  invalid. 

One  principal  ground  of  inconvenience  suggested  was  that  if  foreign 
ships  were  restrained  from  using  this  invention  in  these  dominions, 
English  ships  might  equally  be  restrained  from  using  it  in  foreign  do- 
minions ;  but  I  think  this  argument  resolves  itself  into  a  question  of 
national  policy,  and  it  is  for  the  legislature,  and  not  for  the  courts,  to 
deal  with  that  question  ;  my  duty  is,  to  administer  the  law  and  not  to 
make  it.''  .  .  . 

1  Ace.  Morin  v.  rroupillat  (Cassation,  France),  Journal  du  Palais,  1855,  2,  503  ; 
Teschen  v.  Mohr  (Rouen,  1874),  Journal  du  Palais,  1874,  1165.  —Ed, 


296  BROWN   V.   DUCHESNE.  [CHAP.    IL 

BROWN  V.   DUCHESNE. 
Supreme  Court  of  the  United  States.    1857. 
[Reported  19  Howard,  183.] 

Taney,  C.  J.  This  case  comes  before  the  court  upon  a  writ  of  error 
to  the  Circuit  Court  of  the  United  States  for  the  district  of  Massa- 
chusetts. 

The  plaintiff  in  error,  who  was  also  plaintiff  in  the  court  below, 
brought  this  action  against  the  defendant  for  the  infringement  of  a 
patent  which  the  plaintiff  had  obtained  for  a  new  and  useful  improve- 
ment in  constructing  the  gaff  of  sailing  vessels.  The  declaration  is  in 
the  usual  form,  and  alleges  that  the  defendant  used  this  improvement 
at  Boston  without  his  consent.  The  defendant  pleaded  that  the  im- 
provement in  question  was  used  by  him  only  in  the  gaffs  of  a  French 
schooner,  called  the  '•  Alc3'on,"  of  which  schooner  he  was  master; 
that  he  (the  defendant)  was  a  subject  of  the  Empire  of  France  ;  that 
the  vessel  was  built  in  France,  and  owned  and  manned  by  French  sub- 
jects ;  and,  at  the  time  of  the  alleged  infringement,  was  upon  a  lawful 
voyage,  under  the  flag  of  France,  from  St.  Peters,  in  the  island  of 
Miquelon,  one  of  the  colonies  of  France,  to  Boston,  and  thence  back 
to  St.  Peters,  which  voyage  was  not  ended  at  the  date  of  the  alleged 
infringement ;  and  that  the  gaffs  he  used  were  placed  on  the  schooner 
at  or  near  the  time  she  was  launched  by  the  builder  in  order  to  fit  her 
for  sea. 

There  is  also  a  second  plea  containing  the  same  allegations,  with  the 
additional  averment  that  the  improvement  in  question  had  been  in 
common  use  in  French  merchant  vessels  for  more  than  twenty  years 
before  the  "  Alcj'on"  was  built,  and  was  the  common  and  welt-known 
property  of  every  French  subject  long  before  the  plaintiff  obtained  his 
patent. 

The  plaintiff  demurred  generally  to  each  of  these  pleas,  and  the  de- 
fendant joined  in  demurrer;  and  the  judgment  of  the  Circuit  Court 
being  in  favor  of  the  defendant,  the  plaintiff  thereupon  brought  this 
writ  of  error. 

The  plaintiff,  by  his  demurrer,  admits  that  the  "Alcyon  "  was  a  foreign 
vessel,  lawfully  in  a  port  of  the  United  States  for  the  purposes  of  com- 
merce, and  that  the  improvement,  in  question  was  placed  on  her  in  a 
foreign  port  to  fit  her  for  sea,  and  was  authorized  by  the  laws  of  the 
countr}-  to  which  she  belonged.  The  question,  therefore,  presented  by 
the  first  plea  is  simply  this :  whether  any  improvement  in  the  construc- 
tion or  equipment  of  a  foreign  vessel,  for  which  a  patent  has  been  ob- 
tained in  the  United  States,  can  be  used  by  such  vessel  within  the 
jurisdiction  of  the  United  States,  while  she  is  temporarily  there  for  the 
purposes  of  commerce,  without  the  consent  of  the  patentee? 


SECT.   III.]  BROWN   V.   DUCHESNE.  297 

This  question  depends  on  the  construction  of  the  patent  laws.  For 
undoubtedly  every  person  who  is  found  within  the  limits  of  a  govern- 
ment, whether  for  temporar}'  purposes  or  as  a  resident,  is  bound  by  its 
laws.  The  doctrine  upon  this  subject  is  correctly  stated  by  Mr.  Justice 
Story,  in  his  "  Commentaries  on  the  Conflict  of  Laws"  (chap.  14,  sec. 
541),  and  the  writers  on  public  law  to  whom  he  refers.  A  difllculty 
ma}-  sometimes  arise  in  determining  whether  a  particular  law  applies 
to  the  citizen  of  a  foreign  country,  and  intended  to  subject  him  to  its 
provisions.  But  if  the  law  applies  to  him,  and  embraces  his  case,  it  is 
unquestionably  binding  upon  him  when  he  is  within  the  jurisdiction  of 
the  United  States. 

The  general  words  used  in  the  clause  of  the  patent  laws  granting  the 
exclusive  right  to  the  patentee  to  use  the  improvement,  taken  by  them- 
selves, and  literallv  construed,  without  regard  to  the  object  in  view, 
would  seem  to  sanction  the  claim  of  the  plaintiff.  But  this  mode"  of 
expounding  a  statute  has  never  been  adopted  by  an}'  enlightened  tri- 
bunal —  because  it  is  evident  that  in  many  cases  it  would  defeat  the 
object  which  the  legislature  intended  to  accomplish.  And  it  is  well 
settled  that,  in  interpreting  a  statute,  the  court  will  not  look  merely  to 
a  particular  clause  in  which  general  words  may  be  used,  but  will  take 
in  connection  with  it  the  whole  statute  (or  statutes  on  the  same  subject) 
and  the  objects  and  policy  of  the  law,  as  indicated  by  its  various  pro- 
visions, and  give  to  it  such  a  construction  as  will  carry  into  execution 
the  will  of  the  legislature,  as  thus  ascertained,  according  to  its  true 
intent  and  meaning. 

Neither  will  the  court,  in  expounding  a  statute,  give  to  it  a  construc- 
tion which  would  in  any  degree  disarm  the  government  of  a  power 
which  has  been  confided  to  it  to  be  used  for  the  general  good  —  or 
which  would  enable  individuals  to  embarrass  it,  in  the  discharge  of  the 
high  duties  it  owes  to  the  community  —  unless  plain  and  express  words 
indicated  that  such  was  the  intention  of  the  legislature. 

The  patent  laws  are  authorized  by  that  article  in  the  Constitution 
which  provides  that  Congress  shall  have  power  to  promote  the  progress 
of  science  and  useful  arts,  by  securing  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respective  writings  and  discov- 
eries. The  power  thus  granted  is  domestic  in  its  character,  and  neces- 
sarily confined  within  the  limits  of  the  United  States.  It  confers  no 
power  on  Congress  to  regulate  commerce,  or  the  veiiicles  of  commerce 
which  belong  to  a  foreign  nation,  and  occasionally  visit  our  ports  in 
their  commercial  pursuits.  That  power  and  the  treaty-making  power 
of  the  general  government  are  separate  and  distinct  powers  from  the 
one  of  which  we  are  now  speaking,  and  are  granted  by  separate  and 
different  clauses,  and  are  in  no  degree  connected  with  it.  And  when 
Congress  are  legislating  to  protect  authors  and  inventors,  their  atten- 
tion is  necessarily  attracted  to  tlie  authority  under  which  they  are  act- 
ing, and  it  ought  not  lightly  to  be  presumed  that  they  intended  to  go 
beyond  it,  and  exercise  another  and  distinct  power  conferred  on  them 
for  a  different  puri^ose. 


298  BROWN  V.   DUCHESNE.  [CHAP.  II. 

Nor  is  there  anything  in  the  patent  laws  that  should  lead  to  a  differ- 
ent conclusion.  They  are  all  manifestly  intended  to  carry  into  exe- 
cution this  particular  power.  They  secure  to  the  inventor  a  just 
remuneration  from  those  who  derive  a  profit  or  advantage,  within  the 
United  States,  from  his  genius  and  mental  labors. 

But  the  right  of  property  which  a  patentee  has  in  his  invention,  and 
his  right  to  its  exclusive  use,  is  derived  altogether  from  these  statutory 
provisions  ;  and  this  court  have  always  held  that  an  inventor  has  no 
right  of  propert}'  in  his  invention,  upon  which  he  can  maintain  a  suit, 
unless  he  obtains  a  patent  for  it,  according  to  the  acts  of  Congress ; 
and  that  his  rights  are  to  be  regulated  and  measured  by  these  laws,  and 
cannot  go  beyond  them. 

But  these  acts  of  Congress  do  not,  and  were  not  intended  to,  operate 
beyond  the  limits  of  the  United  States ;  and  as  the  patentee's  right  of 
property  and  exclusive  use  is  derived  from  them,  they  cannot  extend 
be3'oud  the  limits  to  which  the  law  itself  is  confined.  And  the  use  of 
it  outside  of  the  jurisdiction  of  the  United  States  is  not  an  infringe- 
ment of  his  rights,  and  he  has  no  claim  to  au}^  compensation  for  the 
profit  or  advantage  the  party  may  derive  from  it. 

The  chief  and  almost  only  advantage  which  the  defendant  derived 
from  the  use  of  this  improvement  was  on  the  high  seas,  and  in  other 
places  out  of  the  jurisdiction  of  the  United  States.  The  plea  avers 
that  it  was  placed  on  her  to  fit  her  for  sea.  If  it  liad  been  manufac- 
tured on  her  deck  while  she  was  Ij'ing  in  the  port  of  Boston,  or  if  the 
captain  had  sold  it  there,  he  would  undoubtedly  have  trespassed  upon 
the  rights  of  the  plaintiff,  and  would  have  been  justl}^  answerable  for 
the  profit  and  advantage  he  thereby  obtained.  For,  by  coming  in  com- 
petition with  the  plaintiff,  where  the  plaintiff  was  entitled  to  the  ex- 
clusive use,  he  thereb}'  diminished  the  value  of  his  property.  Justice, 
therefore,  as  well  as  the  act  of  Congress,  would  require  that  he  should 
compensate  the  patentee  for  the  injury  he  sustained,  and  the  benefit 
and  advantage  which  he  (the  defendant)  derived  from  the  invention. 

But,  so  far  as  the  mere  use  is  concerned,  the  vessel  could  hai'dly  be 
said  to  use  it  while  she  was  at  anchor  in  the  port,  or  lay  at  the  wharf. 
It  was  certainly  of  no  value  to  her  while  she  was  in  the  harbor ;  and 
the  only  use  made  of  it,  which  can  be  supposed  to  interfere  with  the 
rights  of  the  plaintiff,  was  in  navigating  the  vessel  into  and  out  of  the 
harbor,  when  she  arrived  or  was  about  to  depart,  and  while  she  was 
within  the  jurisdiction  of  the  United  States.  Now,  it  is  obvious  that 
the  plaintiff  sustained  no  damage,  and  the  defendant  derived  no  mate= 
rial  advantage,  from  the  use  of  an  improvement  of  this  kind  b}'  a  for- 
eign vessel  in  a  single  voyage  to  the  United  States,  or  from  occasional 
vo^'ages  in  the  ordinary  pursuits  of  commerce  ;  or  if  any  damage  is 
sustained  on  the  one  side,  or  any  profit  or  advantage  gained  on  the 
other,  it  is  so  minute  that  it  is  incapable  of  any  appreciable  value. 

But  it  seems  to  be  supposed  that  this  user  of  the  improvement  was, 
by  legal  nitendment,  a  trespass  upon  the  rights  of  the  plaintiff ;  and 


SECT.    III.]  BROWN    V.    DUCHESNE.  299 

that  although  no  real  damage  was  sustained  by  the  plaintiff,  and  no 
profit  or  advantage  gained  by  the  defendant,  the  law  presumes  a  dam- 
age, and  that  the  action  may  be  maintained  on  that  ground.  In  other 
words,  that  there  is  a  technical  damage,  in  the  eye  of  the  law,  although 
none  has  really  been  sustained. 

This  view  of  the  subject,  however,  presupposes  that  the  patent  laws 
embrace  improvements  on  foreign  ships,  lawfully  made  in  their  own 
countrv,  which  have  been  patented  here.  But  that  is  the  question  in 
controversy.  And  the  court  is  of  opinion  that  cases  of  that  kind  were 
not  in  the  contemplation  of  Congress  in  enacting  the  patent  laws,  and 
cannot,  upon  any  sound  construction,  be  regarded  as  embraced  in 
them.  For  such  a  construction  would  be  inconsistent  with  the  prin- 
ciples that  lie  at  the  foundation  of  these  laws  ;  and  instead  of  confer- 
ring legal  rights  on  the  inventor,  in  order  to  do  equal  justice  between 
him  and  those  who  profit  by  his  invention,  they  would  confer  a  power 
to  exact  damages  where  no  real  damage  had  been  sustained,  and  would 
moreover  seriously  embarrass  the  commerce  of  the  country  with  foreign 
nations.  We  think  these  laws  ought  to  be  construed  in  the  spirit  in 
which  they  were  made  —  that  is,  as  founded  in  justice  —  and  should 
not  be  strained  by  technical  constructions  to  reach  cases  which  Con- 
gress evidently  could  not  have  contemplated,  without  departing  from 
the  principle  upon  which  they  were  legislating,  and  going  far  beyond 
the  object  they  intended  to  accomplish. 

The  construction  claimed  by  the  plaintiff  would  confer  on  patentees 
not  onl}'  rights  of  propert}',  but  also  political  power,  and  enable  them 
to  embarrass  the  treatj'-making  power  in  its  negotiations  with  foreign 
nations,  and  also  to  interfere  with  the  legislation  of  Congress  when  ex- 
ercising its  constitutional  power  to  regulate  commerce.  And  if  a  treaty 
should  be  negotiated  with  a  foreign  nation,  by  which  the  vessels  of  each 
party  were  to  be  freely  admitted  into  the  ports  of  the  other,  upon  equal 
terms  with  its  own,  upon  the  payment  of  the  ordinary  port  charges, 
and  the  foreign  government  faithfully  carried  it  into  execution,  yet 
the  government  of  the  United  States  would  find  itself  unable  to  fulfil 
its  obligations  if  the  foreign  ship  had  about  her,  in  her  construction  or 
equipment,  anything  for  wliich  a  patent  had  been  granted.  And  after 
paying  the  port  and  other  charges  to  which  she  was  subject  by  the 
treaty,  the  master  would  be  met  with  a  further  demand,  the  amount  of 
which  was  not  even  regulated  b}'  law,  but  depended  upon  the  will  of  a 
private  individual. 

And  it  will  be  remembered  that  the  demand,  if  well  founded  in  the 
patent  laws,  could  not  be  controlled  or  put  aside  by  the  treaty.  For, 
by  the  laws  of  the  United  States,  the  rights  of  a  party  under  a  patent 
are  his  private  property  ;  and  l)y  the  Constitution  of  the  United  States, 
private  property  cannot  he  taken  for  pul)lic  use  without  just  compensa- 
tion. And  in  tlie  case  I  have  stated,  the  government  would  be  unable 
to  carr}'  into  effect  its  treaty  stipulations  without  the  consent  of  the 
patentee,  unless  it  resorted  to  its  right  of  eminent  domain,  and  went 


300  BEOWN   V.   DUCHESNE.  [CHAP.    II, 

through  the  tedious  and  expensive  process  of  condemning  so  much  of 
the  right  of  property  of  the  patentee  as  related  to  foreign  vessels,  and 
paying  him  such  a  compensation  therefor  as  should  be  awarded  to  him 
by  the  proper  tribunal.  The  same  difficulty  would  exist  in  executing  a 
law  of  Congress  in  relation  to  foreign  ships  and  vessels  trading  to  this 
country.  And  it  is  impossible  to  suppose  that  Congress  in  passing 
these  laws  could  have  intended  to  confer  on  the  patentee  a  right  of 
private  property,  which  would  in  effect  enable  him  to  exercise  political 
power,  and  which  the  government  would  be  obliged  to  regain  by  pur- 
chase, or  by  the  power  of  its  eminent  domain,  before  it  could  fully  and 
freely  exercise  the  great  power  of  regulating  commerce,  in  which  the 
whole  nation  has  an  interest.  The  patent  laws  were  passed  to  accom- 
plish a  different  purpose,  and  with  an  eye  to  a  different  object ;  and 
the  right  to  interfere  in  foreign  intercourse,  or  with  foreign  ships  visit- 
ing our  ports,  was  evidently  not  in  the  mind  of  the  legislature,  nor  in- 
tended to  be  granted  to  the  patentee. 

Congress  may  unquestionably,  under  its  power  to  regulate  commerce, 
prohibit  any  foreign  ship  from  entering  our  ports,  which,  in  its  con- 
struction or  equipment,  uses  any  improvement  patented  in  this  country, 
or  may  prescribe  the  terms  and  regulations  upon  which  such  vessel 
shall  be  allowed  to  enter.  Yet  it  may  perhaps  be  doubted  whether 
Congress  could  by  law  confer  on  an  individual,  or  individuals,  a  right 
which  would  in  any  degree  impair  the  constitutional  powers  of  the  leg- 
islative or  executive  departments  of  the  government,  or  which  might 
put  it  in  their  power  to  embarrass  our  commerce  and  intercourse  with 
foreign  nations,  or  endanger  our  amicable  relations.  But  however 
that  may  be,  we  are  satisfied  that  no  sound  rule  of  interpretation  would 
justify  the  court  in  giving  to  the  general  words  used  in  the  patent  laws 
the  extended  construction  claimed  by  the  plaintiff,  in  a  case  like  this, 
where  public  rights  and  the  interests  of  the  whole  community  are  con- 
cerned. 

The  case  of  Caldwell  v.  Vlissengen  (9  Hare,  416,  9  Eng.  L.  & 
Eq.  Rep.  51),  and  the  statute  passed  by  the  British  Parliament  in  con- 
sequence of  that  decision,  have  been  referred  to  and  relied  on  in  the 
argument.  The  reasoning  of  the  Vice-Chancellor  is  certainly  entitled 
to  much  respect,  and  it  is  not  for  this  court  to  question  the  correctness 
of  the  decision,  or  the  construction  given  to  the  statute  of  Henry  VIII. 

But  we  must  interpret  our  patent  laws  with  reference  to  our  own 
Constitution  and  laws  and  judicial  decisions.  And  the  court  are  of 
opinion  that  the  rights  of  property  and  exclusive  use  granted  to  a 
patentee  does  not  extend  to  a  foreign  vessel  lawfully  entering  one  of 
our  ports ;  and  that  the  use  of  such  improvement,  in  the  construction, 
fitting  out,  or  equipment  of  such  vessel,  while  she  is  coming  into  or 
going  out  of  a  port  of  the  United  States,  is  not  an  infringement  of  the 
rights  of  an  American  patentee,  provided  it  was  placed  upon  her  in  a 
foreign  port,  and  authorized  by  the  laws  of  the  country  to  which  she 
belongs. 


SECT.   III.]  BROWN   V.   DUCHESNE.  ^       801 

In  this  view  of  the  subject,  it  is  unnecessary  to  say  anything  in  re- 
lation to  the  second  plea  of  the  defendant,  since  the  matters  relied  on 
in  the  first  are  sufficient  to  bar  the  plaintiff  of  his  action,  without  the 
aid  of  the  additional  averments  contained  in  the  second. 

The  judgment  of  the  Circuit  Couit  must  therefore  be  affirmed. 


CHAPTER  III. 
JURISDICTION   OF  COURTS. 


SECTION   I. 

JURISDICTION   IN   REM. 


THE  BELGENLAND. 

Supreme  Court  of  the  United  States.     1885. 

[Reported  114  United  States,  355.] 

Bradley,  J.^  This  case  grew  out  of  a  collision  which  took  place  on 
the  high  seas  between  the  Norwegian  barque  "  Luna  "  and  the  Belgian 
steamship  "  Belgenland,"  by  which  the  former  was  run  down  and  sunk. 
Part  of  the  crew  of  the  "Luna,"  including  the  master,  were  rescued  by 
the  "  Belgenland  "  and  brought  to  Philadelphia.  The  master  immedi- 
ately libelled  the  steamship  on  behalf  of  the  owners  of  the  "  Luna"  and 
her  cargo,  and  her  surviving  crew,  in  a  cause  civil  and  maritime.  .  .  . 
The  District  Court  decided  in  favor  of  the  libellant,  and  rendered  a 
decree  for  the  various  parties  interested  to  the  aggregate  amount  of 
$50,278.23.     An  appeal  was  taken  to  the  Circuit  Court.  .  .  . 

A  decree  was  thereupon  entered,  affirming  the  decree  of  the  District 
Court.  ...  A  reargument  was  had  on  the  question  of  jurisdiction,  and  the 
court  held  and  decided  that  the  Admiralty  Courts  of  the  United  States 
have  jurisdiction  of  collisions  occurring  on  the  high  seas  between  vessels 
owned  by  foreigners  of  different  nationalities  ;  and  overruled  the  plea 
to  the  jurisdiction.  9  Fed.  Rep.  576.  The  case  was  brought  before  this 
court  on  appeal  from  the  decree  of  the  Circuit  Court.     See  also  108 

U.  S.  153. 

The  first  question  to  be  considered  is  that  of  the  jurisdiction  of  the 
District  Court  to  hear  and  determine  the  cause. 

It  is  unnecessary  here,  and  would  be  out  of  place,  to  examine  the 
question  which  has  so  often  engaged  the  attention  of  the  common  law 
courts,  whether,  and  in  what  cases,  the  courts  of  one  country  should 
take  cognizance  of  controversies  arising  in  a  foreign  country,  or  in 
places  outside  of  the  jurisdiction  of  any  country.     It  is  very  fully  dis- 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  jurisdiction  is  given. 
—  Ed. 


^^^^-  ^0  THE    BELGENLAND.  303 

cussed  in  Mostjn  v.  Fabrigas,  Cowp.  161,  and  the  notes  thereto  in  1 
Smith's  Leading  Cases,  340 ;  and  an  instructive  analysis  of  the  law 
will  be  found  in  the  elaborate  arguments  of  counsel  in  the  case  of 
the  San  Francisco  Vigilant  Committee,  Malony  r.  Dows,  8  Abbott  Pr 
316,  argued  before  Judge  Daly  in  New  York,  1859.  We  shall  content 
ourselves  with  inquiring  what  rule  is  followed  by  Courts  of  Admiralty 
in  dealing  with  maritime  causes  arising  betweenVoreigners  and  others 
on  the  high  seas. 

This  question  is  not  a  new  one  in  these  courts.     Sir  William  Scott 
had  occasion  to  pass  upon  it  in  1799.     An  American  ship  was  taken  by 
the  French  on  a  voyage  from  Philadelphia  to  London,  and  afterwards 
rescued  by  her  crew,  carried  to  England,  and  libelled  for  salva<Te  ;  and 
the  court  entertained  jurisdiction.     The  crew,  however,  though  eno-aaed 
in  the  American  ship,  were  British  born  subjects,  and  weight  was  ^iven 
to  this  circumstance  in  the  disposition  of  the  case.     The  judo-g,  however 
made  the  following  remarks:  "But  it  is  asked,  if  they  were  American 
seamen  would  this  court  hold  plea  of  their  demands?     It  may  be  time 
enough  to  answer  this  question  whenever  the  fact  occurs.     In  the  mean- 
time, I  will  say  without  scruple  that  I  can  see  no  inconvenience  that 
would  arise  if  a  British  court  of  justice  was  to  hold  plea  in  such  a  case  • 
or  conversely,  if  American  courts  were  to  hold  pleas  of  this  nature  re- 
specting the  merits  of  British  seamen  on  such  occasions.     For  salvatre 
IS  a  question  of  Jus  gentium,  and  materiallv  different  from  the  question 
of  a  mariner's  contract,  which  is  a  creature  of  the  particular  institutions 
of  the  country,  to  be  applied  and  construed  and  explained  bv  its  own 
particular  rules.     There  might  be  good  reason,  therefore,  for  this  court 
to  decline  to  interfere  in  such  cases,  and  to  remit  them  to  their  own  do- 
mestic forum ;  but  this  is  a  general  claim,  upon  the  general  o-round  of 
quantum  meruit,  to  be  governed  by  a  sound  discretion,  acting  on  o-en- 
eral  principles  ;  and  I  can  see  no  reason  why  one  country  should  be 
afraid  to  trust  to  the  equity  of  the  courts  of  another  on  such  a  question 
of  such  a  nature,  so  to  be  determined."     The  Two  Friends,  1  Ch.  Rob.' 
271,  278. 

The  law  has  become  settled  very  much  in  accord  with  these  views 
That  was  a  case  of  salvage ;  but  the  same  principles  would  seem  to  ap- 
ply to  the  case  of  destroying  or  injuring  a  ship,  as  to  that  of  savin<T  it 
Both,  when  acted  on  tlie  high  seas,  between  persons  of  different  nation- 
ahties,  come  within  the  domain  of  the  general  law  of  nations,  or  com- 
mums  Juris,  and  are  prima  facie  proper  subjects  of  inquiry  in  anv 
Court  of  Admiralty  which  first  ol)tains  jurisdiction  of  the  rescued  or 
offending  ship  at  the  solicitation  in  justice  of  the  meritorious,  or  injured 
parties.  ''        ' 

The  same  question  of  jurisdiction  arose  in  another  salva<re  case  which 
came  before  this  court  in  1804,    Mason  r.   Tlie  Blaireau,   2   Cranch 
24u.     There  a  French  ship  was  saved  l)y  a  British  ship,  and  brou-ht 
into  a  port  of  the  United  States  ;  and  the  question  of  jurisdiction  was 
raised  by  Mr.  Martin,  of  Maryland,  who,  however,  did  not  press  the 


304  THE   BELGENLAND.  [CHAP.   III. 

point,  and  referred  to  the  observations  of  Sir  William  Seott  in  The 
Two  Friends.  Chief  Justice  Marshall,  speaking  for  the  court,  disposed 
of  the  question  as  follows:  "A  doubt  has  been  suggested,"  said  he, 
"  respecting  the  jurisdiction  of  the  court,  and  upon  a  reference  to  the 
authorities,  the  point  does  not  appear  to  have  been  ever  settled.  These 
doubts  seem  rather  founded  on  the  idea  that  upon  principles  of  general 
policy,  this  court  ought  not  to  take  cognizance  of  a  case  entirely  be- 
tween foreigners,  than  from  any  positive  incapacity  to  do  so.  On 
Weighing  the  considerations  drawn  from  public  convenience,  those  in 
favor  of  the  jurisdiction  appear  much  to  overbalance  those  against  it, 
and  it  is  the  opinion  of  this  court,  that,  whatever  doubts  may  exist  in  a 
case  where  the  jurisdiction  may  be  objected  to,  there  ought  to  be  none 
where  the  parties  assent  to  it."  In  that  case,  the  objection  had  not 
been  taken  in  the  first  instance,  as  it  was  in  the  present.  But  we  do 
not  see  how  that  circumstance  can  affect  the  jurisdiction  of  the  court, 
however  much  it  may  influence  its  discretion  in  taking  jurisdiction. 

For  circumstances  often  exist  which  render  it  inexpedient  for  the 
court  to  take  jurisdiction  of  controversies  between  foreigners  in  cases 
not  arising  in  the  country  of  the  forum  ;  as,  where  they  are  governed 
by  the  laws  of  the  country  to  which  the  parties  belong,  and  there  is 
no  difficulty  in  a  resort  to  its  courts ;  or  where  they  have  agreed  to 
resort  to  no  other  tribunals.  The  cases  of  foreign  seamen  suing  for 
wages,  or  because  of  ill  treatment,  are  often  in  this  category ;  and  the 
consent  of  their  consul,  or  minister,  is  frequently  required  before  the 
court  will  proceed  to  entertain  jurisdiction ;  not  on  the  ground  that  it 
has  not  jurisdiction,  but  that,  from  motives  of  convenience  or  interna- 
tional comity,  it  will  use  its  discretion  whether  to  exercise  jurisdiction 
or  not;  and  where  the  vo^'age  is  ended,  or  the  seamen  have  been  dis- 
missed or  treated  with  great  cruelty,  it  will  entertain  jurisdiction  even 
against  the  protest  of  the  consul.  This  branch  of  the  subject  will  be 
found  discussed  in  the  following  cases :  The  Catherina,  1  Pet.  Adm. 
104 ;  The  Forsoket,  1  Pet.  Adm.  197;  The  St.  0103",  2  Pet.  Adm.  428 
The  Golubchick,  1  W.  Rob.  143;  The  Nina,  L.  R.  2  Adm.  and  Eccl.  44 
s.  c.  on  appeal,  L.  R.  2  Priv.  Co.  38;  The  Leon  XIII.,  8  Prob.  Div.  121 
The  Havana,  1  Sprague,  402 ;  The  Becherdass  Ambaidass,  1  Lowell, 
569  ;  The  Pawashick,  2  Lowell,  142. 

Of  course,  if  any  treat}'  stipulations  exist  between  the  United  States 
and  the  country  to  which  a  foreign  ship  belongs,  with  regard  to  the 
right  of  the  consul  of  that  country  to  adjudge  controversies  arising  be- 
tween the  master  and  crew,  or  other  matters  occurring  on  the  ship 
exclusively  subject  to  the  foreign  law,  such  stipulations  should  be  fairly 
and  faithfully  observed.  The  Elwin  Kreplin,  9  Blatchford,  438,  revers- 
ing s.  c.  4  Ben.  413  ;  see  s.  c.  on  application  for  mandamus,  Ex  parte 
Newman,  14  Wall.  152.  Many  public  engagements  of  this  kind  have 
been  entered  into  between  our  government  and  foreigh  States.  See 
Treaties  and  Conventions,  Rev.  ed.,  1873,  Index,  1238. 

In  the  absence  of  such  treaty  stii)nl.'itions,  however,  the  case  of  for- 


SECT,    I.]  THE    BELGENLAND.  305 

eign  seamen  is  undoubtedly  a  special  one,  when  they  sue  for  wages 
under  a  contract  which  is  generally  strict  in  its  character,  and  framed 
according  to  the  laws  of  the  country  to  which  the  ship  belongs  ;  framed 
also  with  a  view  to  secure,  in  accordance  with  those  laws,  the  rights  and 
interests  of  the  ship-owners  as  well  as  those  of  master  and  crew,  as  well 
when  the  ship  is  abroad  as  when  she  is  at  home.  Nor  is  this  special 
character  of  the  case  entirely  absent  when  foreign  seamen  sue  the  mas- 
ter of  their  ship  for  ill-treatment.  On  general  principles  of  comity, 
Admiralty  Courts  of  other  countries  will  not  interfere  between  the  par- 
ties in  such  cases  unless  there  is  special  reason  for  doing  so,  and  will 
require  the  foreign  consul  to  be  notified,  and,  though  not  absolutely 
bound  by,  will  always  pay  due  respect  to,  his  wishes  as  to  taking 
jurisdiction. 

Not  alone,  however,  in  cases  of  complaints  made  by  foreign  seamen,  but 
in  other  cases  also,  where  the  subjects  of  a  particular  nation  invoke  the 
aid  of  our  tribunals  to  adjudicate  between  them  and  their  fellow  subjects, 
as  to  matters  of  contract  or  tort  solely  affecting  themselves  and  deter- 
minable by  their  own  laws,  such  tribunals  will  exercise  their  discretion 
whether  to  take  cognizance  of  such  matters  or  not.  A  salvage  case  of 
this  kind  came  before  the  United  States  District  Court  of  New  York  in 
1848.  The  master  and  crew  of  a  British  ship  found  another  British  ship 
near  the  English  coast  apparently  abandoned  (though  another  vessel 
was  in  sight),  and  took  off  a  portion  of  her  cargo,  brought  it  to  New 
York,  and  libelled  it  for  salvage.  The  British  consul  and  some  owners 
of  the  cargo  intervened  and  protested  against  the  jurisdiction,  and  Judge 
Betts  discharged  the  case,  delivered  the  property  to  the  owners  upon 
security  given,  and  left  the  salvors  to  pursue  their  remedy  in  the  Eng- 
lish courts.    One  Hundred  and  Ninety-four  Shawls,  1  Abbott  Adm.  317. 

So  in  a  question  of  ownership  of  a  foreign  vessel,  agitated  between 
the  subjects  of  the  nation  to  which  the  vessel  belonged,  the  English 
Admiralty,  upon  objection  being  made  to  its  jurisdiction,  refused  to 
interfere,  the  consul  of  such  foreign  nation  having  declined  to  give  his 
consent  to  the  proceedings.  The  Agincourt,  2  Prob.  Div.  239.  But  in 
another  case,  where  there  had  been  an  adjudication  of  the  ownership 
under  a  mortgage  in  tiie  foreign  country,  and  the  consul  of  that  country 
requested  the  English  court  to  take  jurisdiction  of  the  case  upon  a  libel 
filed  by  the  mortgagee,  whom  the  owners  had  dispossessed,  the  court  took 
jurisdiction  accordingly.     The  Evangelistria,  2  Prob.  Div.  241,  note. 

But,  althougli  the  courts  will  use  a  discretion  about  assuming  juris- 
diction of  controversies  between  foreigners  in  cases  arising  beyond  the 
territorial  jurisdiction  of  the  country  to  which  the  courts  belong,  yet 
where  such  controversies  are  communis  juris,  that  is,  where  they  arise 
under  the  common  law  of  nations,  special  grounds  should  appear  to 
induce  the  court  to  deny  its  aid  to  a  foreign  suitor  when  it  has  jurisdic- 
tion of  the  ship  or  party  charged.  Tlie  existence  of  jurisdiction  in  all 
such  cases  is  beyond  dispute  ;  tiie  only  question  will  be,  whether  it  is 
expedient  to  exercise  it.     See  2  Parsons  Sliii).  and  Adm.  226,  and  cases 


306  THE    BELCxENLAND.  [CHAP.    III. 

cited  in  notes.  In  the  case  of  The  Jerusalem,  2  Gall.  191,  decided  by 
Mr.  Justice  Stor}',  jurisdiction  was  exercised  in  the  case  of  a  bottomry 
bond,  although  the  contract  was  made  between  subjects  of  the  Sublime 
Porte,  and  it  did  not  appear  that  it  was  intended  that  the  vessel  should 
come  to  the  United  States.  In  this  case  Justice  Story  examined  the 
subject  very  fully,  and  came  to  the  conclusion  that,  wherever  there  is  a 
maritime  lien  on  the  ship,  an  Admiraltj-  Court  can  take  jurisdiction  on 
tlie  principle  of  the  civil  law,  that  in  proceedings  in  rem  the  proper 
forum  is  the  locus  rei  sitce.  He  added:  "With  reference,  therefore, 
to  what  may  be  deemed  the  public  law  of  Europe,  a  proceeding  in  rem 
may  well  be  maintained  in  our  courts  where  the  property  of  a  foreigner 
is  within  our  jurisdiction.  Nor  am  I  able  to  perceive  how  the  exercise 
of  such  judicial  authority  clashes  with  any  principles  of  public  policy." 
That,  as  we  have  seen,  was  a  case  of  bottomry,  and  Justice  Story,  in 
answer  to  the  objection  that  the  contract  might  have  been  entered  into 
in  reference  to  the  foreign  law,  after  showing  that  such  law  might  be 
proven  here,  said  :  "In  respect  to  maritime  contracts,  there  is  still  less 
reason  to  decline  the  jurisdiction,  for  in  almost  all  civilized  countries 
these  are  in  general  substantially  governed  by  the  same  rules." 

Justice  Story's  decision  in  this  case  was  referred  to  by  Dr.  Lushing- 
ton  with  strong  approbation  in  the  case  of  The  Golubchick,  1  W.  Rob. 
143,  decided  in  1840,  and  was  adopted  as  authority  for  his  taking  juris- 
diction in  that  case. 

In  1839,  a  case  of  collision  on  the  high  seas  between  two  foreign  ships 
of  different  countries  (the  ver}'  case  now  under  consideration)  came  be- 
fore the  English  Admiralty.  The  Johann  Friederich,  1  W.  Rob.  35.  A 
Danish  ship  was  sunk  by  a  Bremen  ship,  and  on  the  latter  being  libelled, 
the  respondents  entered  a  protest  against  the  jurisdiction  of  the  court. 
But  jurisdiction  was  retained  by  Dr.  Lushington,  who,  amongst  other 
things,  remarked:  "An  alien  friend  is  entitled  to  sue  [in  our  courts] 
on  the  same  footing  as  a  British  born  subject,  and  if  the  foreigner  in 
this  case  had  been  i-esident  here,  and  the  cause  of  action  had  originated 
^?^//•a  corpus  comitatns,  no  objection  could  have  been  taken."  Refer- 
ence being  made  to  the  observations  of  Lord  Stowell  in  cases  of  sea- 
men's wages,  the  judge  said:  "All  questions  of  collision  are  questions 
communis  juris  ;  but  in  case  of  mariners'  wages,  whoever  engages  vol- 
untarily to  serve  on  board  a  foreign  ship,  necessarily  undertakes  to  be 
bound  by  the  law  of  the  country  to  which  such  ship  belongs,  and  the 
legality'  of  his  claim  must  be  tried  by  such  law.  One  of  the  most  im- 
portant distinctions,  therefore,  respecting  cases  where  both  parties  are 
foreigners  is,  whether  the  case  be  comw?^/?/5j?m's  or  not.  .  .  .  If  these 
parties  must  wait  until  the  vessel  that  has  done  the  injury  returned  to 
its  own  country,  their  remedy  might  be  altogether  lost,  for  she  might 
never  return,  and,  if  she  did,  there  is  no  part  of  the  world  to  which  they 
might  not  be  sent  for  their  redress." 

In  the  subsequent  case  of  The  Griefswald,  1  Swabey,  430,  decided 
by  the  same  judge  in  1859,  which  arose  out  of  a  collision  between  a 


SECT.    I.]  THE   BELGENLAND.  307 

British  barque  and  a  Persian  ship  in  the  Dardanelles,  Dr.  Lushington 
said:  '"In  cases  of  collision,  it  has  been  the  practice  of  this  country, 
and,  so  far  as  I  know,  of  the  European  States  and  of  the  United  States 
of  America,  to  allow  a  party  alleging  grievance  by  a  collision  to  proceed 
in  rem  against  the  ship  wherever  found,  and  this  practice,  it  is  manifest, 
is  most  conducive  to  justice,  because  in  very  many  cases  a  remedy  m 
personam  would  be  impracticable." 

The  subject  has  frequentl}-  been  before  our  own  Admiralt}'  Courts  of 
original  jurisdiction,  and  there  has  been  but  one  opinion  expressed, 
namely,  that  they  have  jurisdiction  in  such  cases,  and  that  they  will 
exercise  it  unless  special  circumstances  exist  to  show  that  justice  would 
be  better  subserved  by  declining  it.  It  was  exercised  in  two  cases  of 
collision  coming  before  Mr.  Justice  Blatchford,  while  district  judge  of 
the  Southern  District  of  New  York,  The  Jupiter,  1  Ben.  536,  and  The 
Steamship  Russia,  3  Ben.  471.  In  the  former  case  the  law  was  taken 
very  much  for  granted  ;  in  the  latter  it  was  tersely  and  accurately  ex- 
pounded, with  a  reference  to  the  principal  authorities.  Other  cases 
might  be  referred  to,  but  it  is  unnecessary  to  cite  them.  The  general 
doctrine  on  the  subject  is  recognized  in  the  case  of  The  Maggie  Ham- 
mond, 9  Wall.  435,  457,  and  is  accurately  stated  by  Chief  Justice  Tane}' 
in  his  dissenting  opinion  in  Taylor  v.  Carryl,  20  How.  583,  Oil. 

As  the  assumption  of  jurisdiction  in  such  cases  depends  so  largel}'  on 
the  discretion  of  the  court  of  first  instance,  it  is  necessar}-  to  inquire 
how  far  an  appellate  court  should  undertake  to  review  its  action.  We 
are  not  without  authority  of  a  very  high  cliaracter  on  this  point.  In  a 
quite  recent  case  in  England,  that  of  The  Leon  XIII.,  8  Prob.  Div.  121, 
the  subject  was  discussed  in  the  Court  of  Appeal.  That  was  the  case 
of  a  Spanish  vessel  libelled  for  the  wages  of  certain  British  seamen  who 
had  shipped  on  board  of  her,  and  the  Spanish  consul  at  Liverpool  pro- 
tested against  the  jurisdiction  of  the  Admiralty  Coint  on  the  ground 
that  the  shipping  articles  were  a  Spanish  contract,  to  be  governed  by 
Spanish  law,  and  any  controvers}'  arising  thereon  could  onlv  be  spttled 
before  a  Spanish  court,  or  consul.  Sir  Robert  Phillimore  held  that  the 
seamen  were  to  be  regarded  for  that  case  as  Spanish  subjects,  and, 
under  the  circumstances,  he  considered  the  protest  a  pr()j)er  one  and 
dismissed  the  suit.  The  Court  of  Appeal  held  that  the  judge  below  was 
right  in  regarding  the  lil)ellants  as  Spanish  subjects;  and  on  the  ques- 
tion of  reviewing  his  exeicise  of  discretion  in  refusing  to  take  jurisdiction 
of  the  case,  Brett,  M.  R.,  said  :  "It  is  then  said  that  the  learned  judge 
has  exercised  his  discretion  wrongly.  What  then  is  the  rule  as  regards 
this  point  in  the  Court  of  Appeal  ?  The  plaintills  uuist  show  that  the 
judge  has  exercised  his  discretion  on  wrong  princi[)les,  or  that  he 
has  acted  so  absolutel}'  differently  from  the  view  which  the  Court  of 
Appeal  holds,  that  they  are  justified  in  saying  he  has  exercised  it 
wrongly.  I  cannot  see  tiiat  any  wrong  princi[)le  has  l)oen  acted  on  b}' 
the  learned  jiulge,  or  anytliing  done  in  tlio  exercise  of  his  discretion  so 
unjust  or  unfair  as  to  (Mititle  us  to  overrule;  his  discretion." 


308  ARNDT   V.    GRIGGS.  [CHAP.   III. 

This  seems  to  us  to  be  a  very  sound  view  of  the  subject ;  and  acting 
on  this  principle,  we  certainly  see  nothing  in  the  course  taken  by  the 
District  Court  in  assuming  jurisdiction  of  the  present  case,  which  calls 
for  animadversion.  Indeed,  where  the  parties  are  not  only  foreigners, 
but  belong  to  different  nations,  and  the  injury  or  salvage  service  takes 
place  on  the  high  seas,  there  seems  to  be  no  good  reason  why  the  party 
injured,  or  doing  the  service,  should  ever  be  denied  justice  in  our  courts. 
Neither  party  has  an}-  peculiar  claim  to  be  judged  b}'  the  municipal  law 
of  his  own  country,  since  the  case  is  pre-eminently  one  communis  juris, 
and  can  generally*  be  more  impartially  and  satisfactorily  adjudicated  by 
the  court  of  a  third  nation  having  jurisdiction  of  the  res  or  parties,  than 
it  could  be  by  the  courts  of  either  of  the  nations  to  which  the  litigants 
belong.  As  Judge  Dead}*  very  justl}'  said,  in  a  case  before  him  in  the 
district  of  Oregon  :  "  The  parties  cannot  be  remitted  to  a  home  forum, 
for,  being  subjects  of  different  governments,  there  is  no  such  tribunal. 
The  forum  which  is  common  to  them  both  by  the  jus  gentium  is  any 
court  of  admiralt}'  within  the  reach  of  whose  process  they  may  both  be 
found."     Bernbard  v.  Greene,  3  Sawyer,  230,  235. 


ARNDT  V.  GRIGGS. 

Supreme  Court  of  the  United  States.     1890. 

[Reported  134  United  States,  316.] 

Brewer,  J.  The  statutes  of  Nebraska  contain  these  sections  :  Sec.  57, 
chap.  73,  Compiled  Statutes  1885,  p.  483  :  "  An  action  maybe  brought 
and  prosecuted  to  final  decree,  judgment,  or  order,  by  any  person  or  per- 
sons, whether  in  actual  possession  or  not,  claiming  title  to  real  estate, 
against  any  person  or  persons,  who  claim  an  adverse  estate  or  interest 
therein,  for  the  purpose  of  determining  such  estate  or  interest,  and 
quieting  the  title  to  said  real  estate."  Sec.  58:  "  All  such  pleadings 
and  proofs  and  subsequent  proceedings  shall  be  had  in  such  action  now 
pending  or  hereafter  brought,  as  may  be  necessar}'  to  full}'  settle  or 
determine  the  question  of  title  between  the  parties  to  said  real  estate, 
and  to  decree  the  title  to  the  same,  or  any  part  thereof,  to  the  party 
entitled  thereto ;  and  the  court  may  issue  the  appropriate  order  to 
carry  such  decree,  judgment,  or  order  into  effect."  Sec.  77,  Code  of 
Civil  Procedure,  Compiled  Statutes  1885,  p.  637 :  "  Service  may  be 
made  by  publication  in  either  of  the  following  cases:  "Fourth.  In 
actions  which  relate  to,  or  the  subject  of  which  is,  real  or  personal 
property  in  this  State,  where  any  defendant  has  or  claims  a  lien  or 
interest,  actual  or  contingent,  therein,  or  the  relief  demanded  consists 
wholly  or  partially  in  excluding  him  from  any  interest  therein,  and 
such  defendant  is  a  non-resident  of  the  State  or  a  foreign  corporation." 
Sec.  78  of  the  Code:  "Before   service  can  be  made  by  publication. 


SECT.    I.]  AENDT   V.    GEIGGS.  309 

an  affidavit  must  be  filed  that  service  of  a  summons  cannot  be  made 
witliin  this  State,  on  the  defendant  or  defendants,  to  be  served  by  pub- 
lication, and  that  the  case  is  one  of  those  mentioned  in  the  preceding 
section.  When  such  affidavit  is  filed  the  party  may  proceed  to  make 
service  by  publication."  Sec.  82  of  the  Code  :  "  A  party  against  whom 
a  judgment  or  decree  has  been  rendered  without  other  service  than  by 
publication  in  a  newspaper,  may,  at  any  time  within  five  years  after 
the  date  of  the  judgment  or  order,  have  the  same  opened  and  be  let  in 
to  defend ;  ...  but  the  title  to  any  property,  the  subject  of  the  judg- 
ment or  order  sought  to  be  opened,  which  by  it,  or  in  consequence  of 
it,  shall  have  passed  to  a  purchaser  in  good  faith,  shall  not  be  affected 
by  any  proceedings  under  this  section,  nor  sluill  they  affect  the  title  to 
any  property  sold  before  judgment  under  an  attachment."  Sec.  429  6, 
of  the  Code  :  "■  When  any  judgment  or  decree  shall  be  rendered  for  a 
conveyance,  release,  or  acquittance,  in  any  court  of  this  State,  and  the 
party  "or  parties  against  whom  the  judgment  or  decree  shall  be  rendered 
do  not  comply  therewith  within  the  time  mentioned  in  said  judgment 
or  decree,  such  judgment  or  decree  shall  have  the  same  operation  and 
effect,  and  be  as  available,  as  if  the  conveyance,  release,  or  acquittance 
had  been  executed  conformable  to  such  judgment  or  decree." 

Under  these  sections,  in  March,  1882,  Charles  L.  Flint  filed  his  peti- 
tion in  the  proper  court  against  Michael  Hurley  and  another,  alleging 
that  he  was  the  owner  and  in  possession  of  the  tracts  of  land  in  con- 
troversy in  this  suit ;  that  he  held  title  thereto  by  virtue  of  certain  tax 
deeds,  which  were  described  ;  that  the  defendants  claimed  to  have 
some  title,  estate,  interest  in,  or  claim  upon  the  lauds  by  patent  from 
the  United  States,  or  deed  from  the  patentee,  but  that  whatever  title, 
estate,  or  claim  they  had,  or  pretended  to  have,  was  divested  by  the 
said  tax  deeds,  and  was  unjust,  inequitable,  and  a  cloud  upon  plain- 
tiff's title  ;  and  that  this  suit  was  brought  for  the  purpose  of  quieting 
his  title.  The  defendants  were  brought  in  by  publication,  a  decree  was 
entered  in  favor  of  Flint  quieting  his  title,  and  it  is  conceded  that  all 
the  proceedings  were  in  full  conformity  with  the  statutory  provisions 
above  quoted. 

The  present  suit  is  one  in  ejectment,  between  grantees  of  the  respec- 
tive parties  to  the  foregoing  proceedings  to  quiet  title  ;  and  the  ques- 
tion before  us,  arising  upon  a  certificate  of  division  of  opinion  between 
the  trial  judges,  is  whether  the  decree  in  such  proceedings  to  quiet  title, 
rendered  in  accordance  with  the  provisions  of  the  Nebraska  statute, 
upon  service  duly  authorized  by  them,  was  valid  and  operated  to  quiet 
the  title  in  the  plaintiff  therein.  In  other  words,  has  a  State  tlie 
power  to  provide  by  statute  that  the  title  to  real  estate  within  its  limits 
shall  be  settled  and  determined  by  a  suit  in  which  the  defendant,  being 
a  non-resident,  is  brought  into  court  only  by  publication?  The  Supreme 
Court  of  Nebraska  has  answered  this  question  in  the  affirmative. 
Watson  V.  Ulbrich,  18  Neb.  189  —  in  which  the  court  says:  "The 
principal  question  to  be  determined  is  whether  or  not  the  decree  in 


310  AENDT   V.    GRIGGS.  [CHAP.    III. 

favor  of  Gra}',  rendered  upon  constructive  service,  is  valid  until  set 
aside.  No  objection  is  made  to  the  service,  or  any  proceedings  con- 
nected with  it.  The  real  estate  in  controversy  was  within  the  jurisdic- 
tion of  the  District  Court,  and  that  court  had  authority,  in  a  proper 
case,  to  render  the  decree  confirming  the  title  of  Gray.  In  Castrique 
V.  Imrie,  L.  R.  4  H.  L.  414,  429,  Mr.  Justice  Blackburn  says:  'We 
think  the  inquiry  is,  first,  whether  the  subject-matter  was  so  situated 
as  to  be  within  the  lawful  control  of  the  State  under  the  authority  of 
which  the  court  sits  ;  and,  secondly,  whether  the  sovereign  authority  of 
that  State  has  conferred  on  the  court  jurisdiction  to  decide  as  to  the 
disposition  of  the  thing,  and  the  court  has  acted  within  its  jurisdiction. 
If  these  conditions  are  fulfilled,  the  adjudication  is  conclusive  against 
all  the  world.'  The  court,  therefore,  in  this  case,  having  authority  to 
render  the  decree,  and  jurisdiction  of  the  subject-matter,  its  decree  is 
conclusive  upon  the  property  until  vacated  under  the  statutes  or  set 
aside." 

Section  57,  enlarging  as  it  does  the  class  of  cases  in  which  relief  was 
formerly  afforded  by  a  court  of  equity  in  quieting  the  title  to  real 
property,  has  been  sustained  by  this  court,  and  held  applicable  to  suits 
in  the  Federal  court.  Holland  v.  Challen,  110  U.  S.  15.  But  it  is  ear- 
nestly contended  that  no  decree  in  such  a  case,  rendered  on  service  by 
publication  only,  is  valid  or  can  be  recognized  in  the  Federal  courts. 
And  Hart  v.  Sansom,  110  U.  S.  151,  is  relied  on  as  authority  for  this 
proposition.  The  propositions  are,  that  an  action  to  quiet  title  is  a 
suit  in  equity  ;  that  equity  acts  upon  the  person ;  and  that  the  person 
is  not  brought  into  court  by  service  by  publication  alone. 

While  these  propositions  are  doubtless  correct  as  statements  of  the 
general  rules  respecting  bills  to  quiet  title,  and  proceedings  in  courts  of 
equity,  they  are  not  applicable  or  controlling  here.  The  question  is 
not  what  a  court  of  equity,  by  virtue  of  its  general  powers  and  in  the 
absence  of  a  statute,  might  do,  but  it  is,  what  jurisdiction  has  a  State 
over  titles  to  real  estate  within  its  limits,  and  what  jurisdiction  may  it 
give  by  statute  to  its  own  courts,  to  determine  the  validity  and  extent 
of  the  claims  of  non-residents  to  such  real  estate?  If  a  State  has  no 
power  to  bring  a  non-resident  into  its  courts  for  any  purposes  by  pub- 
lication, it  is  impotent  to  perfect  the  titles  of  real  estate  within  its  limits 
held  by  its  own  citizens  ;  and  a  cloud  cast  upon  such  title  by  a  claim  of 
a  non-resident  will  remain  for  all  time  a  cloud,  unless  such  non-resident 
shall  voluntarily  come  into  its  courts  for  the  purpose  of  having  it  adju- 
dicated. But  no  such  imperfections  attend  the  sovereignty  of  the  State. 
It  has  control  over  property  within  its  limits  ;  and  the  condition  of 
ownership  of  real  estate  therein,  whether  the  owner  be  stranger  or  citi- 
zen, is  subjection  to  its  rules  concerning  the  holding,  the  transfer,  lia- 
bility to  obligations,  private  or  public,  and  the  modes  of  establishing 
title's  thereto.  It  cannot  bring  the  person  of  a  non-resident  within  its 
limits  — its  process  goes  not  out  beyond  its  borders  — but  it  may  deter- 
mine the  extent  of  his  title  to  real  estate  witliin  its  limits;  and  for  the 


SECT.    I.]  AKNDT   V.   GKIGGS.  311 

purpose  of  such  determination  ma}'  provide  any  reasonable  methods  of 
imparting  notice.  The  well-being  of  eveiy  community  requires  that  the 
title  of  real  estate  therein  shall  be  secure,  and  that  there  be  convenient 
and  certain  methods  of  determining  any  unsettled  questions  respecting  it. 
The  duty  of  accomplishing  this  is  local  in  its  nature  ;  it  is  not  a  matter  of 
national  concern  or  vested  in  the  general  government ;  it  remains  with 
the  State  ;  and  as  this  dut;-  is  one  of  the  State,  the  manner  of  discharg- 
ing it  must  be  determined  by  the  State,  and  no  proceeding  which  it 
provides  can  be  declared  invalid,  unless  in  conflict  with  some  special 
inhibitions  of  the  Constitution,  or  against  natural  justice.  So  it  has 
been  held  repeatedh^  that  the  procedure  established  b}^  the  State,  in 
this  respect,  is  binding  upon  the  Federal  courts.  In  United  States  v. 
Fox,  94  U.  S.  315,  320,  it  was  said  :  "  The  power  of  the  State  to  regu- 
late the  tenure  of  real  property  within  her  limits,  and  the  modes  of  its 
acquisition  and  transfer,  and  the  rules  of  its  descent,  and  the  extent  to 
which  a  testamentary  disposition  of  it  may  be  exercised  b}'  its  owners 
is  undoubted.  It  is  an  established  principle  of  law,  everywhere  recog- 
nized, arising  from  the  necessit}'  of  the  case,  that  the  disposition  of 
immovable  property,  whether  by  deed,  descent,  or  any  other  mode,  is 
exclusively  subject  to  the  government  within  whose  jurisdiction  the 
property  is  situated."  See  also  McCormick  v.  SuUivant,  10  Wheat. 
192,  202  ;  Beauregard  v.  New  Orleans,  18  How.  497;  Suydam  v.  Wil- 
Uamson,  24  How.  427  ;  Christian  Union  v.  Yount,  101  U.  S.  352  ; 
Lathrop  v.  Bank,  8  Dana,  114. 

Passing  to  an  examination  of  the  decisions  on  the  precise  question  it 
maj-  safely  be  affirmed  that  the  general,  if  not  the  uniform,  ruling  of 
State  courts  has  been  in  favor  of  the  power  of  the  State  to  thus  quiet 
the  title  to  real  estate  within  its  limits.  In  addition  to  the  case  from 
Nebraska,  heretofore  cited,  and  which  only  followed  prior  rulings  in 
that  State,  —  Scudder  v.  Sargent,  15  Neb.  102;  Keene  v.  Sallen- 
bach,  15  Neb.  200 — reference  may  be  had  to  a  few  cases.  In 
Cloyd  V.  Trotter,  118  111.  391,  the  Supreme  Court  of  Illinois  held  that 
under  the  statutes  of  that  State  the  court  could  acquire  jurisdiction 
to  quiet  title  by  constructive  service  against  non-resident  defendants. 
A  similar  ruling  as  to  jurisdiction  acquired  in  a  suit  to  set  aside  a  con- 
veyance as  fraudulent  as  to  creditors  was  aflirmed  in  Adams  v.  Cowles, 
95  Mo.  501.  la  Wunstel  i\  Landry,  39  La.  Ann.  312,  it  was  held 
that  a  non-resident  party  could  be  brought  into  an  action  of  partition 
by  constructive  service.  In  Essig  v.  Lower,  21  Northeastern  Rep. 
1090,  the  Supreme  Court  of  Indiana  thus  expressed  its  views  on  the 
question  :  "  It  is  also  argued  that  the  decree  in  the  action  to  quiet 
title,  set  forth  in  the  siiecial  finding,  is  I'li-  personam  and  not  in  rem, 
and  that  the  court  had  no  power  to  render  such  decree  on  publication. 
While  it  may  be  true  that  such  decree  is  not  in  rem,  strictly  speaking, 
yet  it  must  be  conceded  that  it  fixed  and  settled  the  title  to  the  land 
then  in  controversy,  and  to  that  extent  partakes  of  the  nature  of  a  judg 
ment  in  rem.     But  we  do  not  deem  it  necessary  to  a  decision  of  this  case 


312  ARNDT   V.   GKIGGS.  [CHAP.    III. 

to  determine  whether  the  decree  is  in  personam  or  in  rem.    The  action 
was  to  quiet  the  title  to  the  land  then  involved,  and  to  remove  there- 
from certain  apparent  liens.     Section  318,  Rev.  Stat.  1881,  expressly 
authorizes  the  rendition  of  such  a  decree  on  publication."     This  was 
since  the  decision  in  Hart  v.  Sansom,  as  was  also  the  case  of  Dillen  v. 
Heller,  39  Kansas,  599,  in  which  Mr.  Justice  Valentine,  for  the  court, 
savs  :   ' '  For  the  present  we  shall  assume  that  the  statutes  authorizing 
service  of  summons  by  publication  were  strictly  complied  with  in  the 
present  case,  and  then  tlie  only  question  to  be  considered  is  whether 
the  statutes  themselves  are  valid.     Or,  in  other  words,  we  think  the 
question  is  this  :  Has  the  State  any  power,  through  the  legislature  and 
the  courts,  or  by  any  other  means  or  instrumentalities,  to  dispose  of  or 
control  property  in  the  State  belonging  to  non-resident  owners  out  of 
the   State,   where  such  non-resident  owners   will  not  voluntarily  sur- 
render jurisdiction  of  their  persons  to  the  State  or  to  the  courts  of  the 
State,  and  where  the  most  urgent  public  policy  and  justice  require  that 
the  State  and  its  courts  should  assume  jurisdiction  over  such  property? 
Power  of  this  kind  has  already  been  exercised,  not  only  in  Kansas,  but 
in  all  the  other  States.     Lands  of  non-resident  owners,  as  well  as  of 
resident  owners,  are  taxed  and  sold  for  taxes;  and  the  owners  thereby 
may  totally  be  deprived  of  such  lands,  although  no  notice  is  ever  given 
to  such  owners,  except  a  notice  by  publication,  or  some  other  notice  of 
no  greater  value,  force,  or  efficacy.     Beebe  v.  Doster,  36  Kansas,  666, 
675°  677;  s.  c.  14  Pac.  Rep.  150.     Mortgage  liens,  mechanics'  liens, 
material-men's  liens,  and  other   liens  are  foreclosed  against  non-resi- 
dent defendants  upon  service  by  publication  only.     Lands  of  non-resi- 
dent defendants  are  attached  and  sold  to  pay  their  debts  ;  and,  indeed, 
almost  any  kind  of  action  may  be  instituted  and  maintained  against 
non-residents  to  the  extent  of  any  interest  in  property  they  may  have 
in  Kansas,  and  the  jurisdiction  to  hear  and  determine  in  this  kind  of 
cases  may  be  obtained  wholly  and  entirely  by  publication.     Gillespie 
V.  Thomas,  23  Kansas,  138;  Walkenhorst  i'.  Lewis,  24  Kansas,   420; 
Rowe  V.  Palmer,  29  Kansas,  337  ;  Venable  v.  Dutch,  37  Kansas,  515, 
519.     All  the  States  by  proper  statutes  authorize  actions  against  non- 
residents, and  service  of  summons  therein  by  publication  only,  or  ser- 
vice in  some  other  form  no  better ;  and,  in  the  nature  of  things,  such 
must  be  done  in  every  jurisdiction,  in  order  that  full  and  complete 
justice  may  be  done  where  some  of  the  parties  are  non-residents.     We 
think  a  sovereign   State  has  the  power  to  do  just  such  a  thing.     All 
things  within  the  territorial  boundaries  of  a  sovereignty  are  within  its 
jurisdiction;  and,  generally,  within  its  own  boundaries  a  sovereignty  is 
supreme.     Kansas  is  supreme,  except  so  far  as  its  power  and  author- 
ity are  limited  by  the  Constitution  and  laws  of  the  United  States  ;  and 
within  the  Constitution  and  laws  of  the  United   States  the  courts  of 
Kansas  may  have  all  the  jurisdiction  over  all  persons  and  things  within 
the  State  which  the  constitution  and  laws  of  Kansas  may  give  to  them ; 
and  the  mode  of  obtaining  this  jurisdiction  may  be  prescribed  wholly. 


SECT.    I.]  ARNDT    V.   GRIGGS.  313 

entirely,  and  exclusively  by  the  statutes  of  Kansas.  To  obtain  juris- 
diction of  everything  within  the  State  of  Kansas,  the  statutes  of  Kan- 
sas may  make  service  by  publication  as  good  as  any  other  kind  of 
service."' 

Turning  now  to  the  decisions  of  this  court :  In  Boswell's  Lessee  v. 
Otis,  9  How.  336,  348,  was  presented  a  case  of  a  bill  for  a  specific 
performance  and  an  accounting,  and  in  which  was  a  decree  for  specific 
performance  and  accounting ;  and  an  adjudication  that  the  amount  due 
on  such  accounting  shoukl  operate  as  a  judgment  at  law.  Service  was 
had  by  publication,  the  defendants  being  non-residents.  The  validity 
of  a  sale  under  such  judgment  was  in  question ;  the  court  held  that 
portion  of  the  decree,  and  the  sale  made  under  it,  void  ;  but  with  refer- 
ence to  jurisdiction  in  a  case  for  specific  performance  alone,  made  these 
observations :  "  Jurisdiction  is  acquired  in  one  of  two  modes  :  first,  as 
against  the  person  of  the  defendant,  by  the  service  of  process ;  or, 
secondly,  by  a  procedure  against  the  property  of  the  defendant  within 
the  jurisdiction  of  the  court.  In  the  latter  case  the  defendant  is  not 
personally  bound  by  the  judgment,  beyond  the  property  in  question. 
And  it  is  immaterial  whether  the  proceeding  against  the  property  be 
by  an  attachment  or  bill  in  chancery.  It  must  be  substantially  a  pro- 
ceeding in  rem.  A  bill  for  the  specific  execution  of  a  contract  to  con- 
vey real  estate  is  not  strictly  a  proceeding  in  rem.,  in  ordinary  cases  ; 
but  where  such  a  procedure  is  authorized  by  statute,  on  publication, 
without  personal  service  or  process,  it  is  substantially  of  that  character." 

In  the  case  of  Parker  c.  Overman.  18  How.  137, 140,  the  question  was 
presented  under  an  Arkansas  statute,  a  statute  authorizing  service  by 
publication.  While  the  decision  on  the  merits  was  adverse,  the  court  thus 
states  the  statute,  the  case  and  the  law  applicable  to  the  proceedings  un- 
der it :  "It  had  its  origin  in  the  State  court  of  Dallas  County,  Arkansas, 
sitting  in  chan.cery.  It  is  a  proceeding  under  a  statute  of  Arkansas,  pre- 
scribing a  special  remedy  for  the  confirmation  of  sales  of  land  by  a  sheriff 
or  other  public  oflScer.  Its  object  is  to  quiet  the  title.  The  purchaser 
at  such  sales  is  authorized  to  institute  proceedings  by  a  public  notice  in 
some  newspaper,  describing  the  land,  stating  the  authority  under  which 
it  was  sold,  and  '  calling  on  all  persons  who  can  set  up  any  right  to  the 
lands  so  purchased,  in  consequence  of  any  informality,  or  any  irregu- 
larity or  illegality  connected  with  the  sale,  to  show  cause  why  the  sale 
so  made  should  not  be  confirmed.'  In  case  no  one  appears  to  contest 
the  regularity  of  the  sale,  the  court  is  required  to  confirm  it,  on  finding 
certain  facts  to  exist.  But  if  opposition  be  made,  and  it  should  ap- 
pear that  the  sale  was  made  '  contrary  to  law,'  it  became  the  duty  of 
the  court  to  annul  it.  The  judgment  or  decree,  in  favor  of  the  grantee 
in  the  deed,  operates  '  as  a  complete  bar  against  any  and  all  persons 
who  may  thereafter  claim  such  land,  in  consequence  of  any  informality 
or  illegality  in  the  proceedings.'  It  is  a  very  great  evil  in  any  com- 
munity to  have  titles  to  land  insecure  and  uncertain  ;  and  especially 
in  new  States,  where  its  result  is  to  retard  the  settlement  ami  inipiove- 


314  AKNDT    V.    GRIGGS.  [CHAP.    III. 

ment  of  their  vacant  lands.  Where  such  lands  have  been  sold  for 
taxes  there  is  a  cloud  on  the  title  of  both  claimants,  which  deters  the 
settler  from  purchasing  from  either.  A  prudent  man  will  not  purchase 
a  lawsuit,  or  risk  the  loss  of  his  money  and  labor  upon  a  litigious  title. 
The  act  now  under  consideration  was  intended  to  remedy  this  evil.  It 
is  in  substance  a  bill  of  peace.  The  jurisdiction  of  the  court  over  the 
controversy  is  founded  on  the  presence  of  the  property ;  and,  like  a 
proceeding  in  rem,  it  becomes  conclusive  against  the  absent  claimant, 
as  well  as  the  present  contestant.  As  was  said  by  the  court  in  Clark 
V.  Smith,  13  Pet.  195,  203,  with  regard  to  a  similar  law  of  Kentucky: 
'  A  State  has  an  undoubted  power  to  regulate  and  protect  individual 
rights  to  her  soil,  and  declare  what  shall  form  a  cloud  over  titles  ;  and, 
having  so  declared,  the  courts  of  the  United  States,  by  removing  such 
clouds,  are  only  applying  an  old  practice  to  a  new  equity  created  by  the 
legislature,  having  its  origin  in  the  peculiar  condition  of  the  country. 
The  State  legislatures  have  no  authority  to  prescribe  forms  and  modes 
of  proceeding  to  the  courts  of  the  United  States  ;  yet  having  created  a 
right,  and  at  the  same  time  prescribed  the  remedy  to  enforce  it,  if  the 
remedy  prescribed  be  substantially  consistent  with  the  ordinary  modes 
of  proceeding  on  the  chancery  side  of  the  Federal  courts,  no  reason 
exists  why  it  should  not  be  pursued  in  tlie  same  form  as  in  the  State 
court.'  In  the  case  before  us  the  proceeding,  though  special  in  its 
form,  is  in  its  nature  but  the  application  of  a  well  known  chancery 
remedy ;  it  acts  upon  the  land,  and  may  be  conclusive  as  to  the  title  of 
a  citizen  of  another  State." 

In  the  case  of  Pennoyer  v.  Neff,  95  U.  S.  714,  727,  734,  in  which 
the  question  of  jurisdiction  in  cases  of  service  by  publication  was  con- 
sidered at  length,  the  court,  by  Mr.  Justice  Field,  thus  stated  the  law  : 
"  Such  service  may  also  be  sufficient  in  cases  where  the  object  of  the 
action  is  to  reach  and  dispose  of  property  in  the  State,  or  of  some  inter- 
est therein,  by  enforcing  a  contract  or  lien  respecting  the  same,  or  to 
partition  it  among  different  owners,  or,  when  the  public  is  a  part}',  to 
condemn  and  appropriate  it  for  a  public  purpose.  In  other  words, 
such  service  may  answer  in  all  actions  which  are  substantially  proceed- 
ings in  rem.  ...  It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem 
is  one  taken  directly  against  property,  and  has  for  its  object  the  dis- 
position of  the  property,  without  reference  to  the  title  of  individual 
claimants;  but,  in  a  larger  and  more  general  sense,  the  terms  are 
applied  to  actions  between  parties,  where  the  direct  object  is  to  reach 
and  dispose  of  property  owned  by  them,  or  of  some  interest  therein. 
Such  are  cases  commenced  by  attachment  against  the  property  of 
debtors,  or  instituted  to  partition  real  estate,  foreclose  a  mortgage,  or 
enforce  a  lien.  So  far  as  they  affect  property  in  the  State,  they  are 
substantially  proceedings  in  rem  in  the  broader  sense  which  we  have 
mentioned."  These  cases  were  all  before  the  decision  of  Hart  v. 
Sansom. 

Passing  to  a  case  later  than  that,  Huling  v.   Kaw  Valley  Railway, 


SECT.    I.]  AENDT    V.    GRIGGS.  315 

130  U.  S.  559,  563,  it  was  held  that,  in  proceedings  commenced  under 
a  statute  for  the  condemnation  of  lands  for  railroad  purposes,  publica- 
tion was  sufficient  notice  to  a  non-resident.  In  the  opinion,  Mr.  Jus- 
tice Miller,  speaking  for  the  court,  says  :  "  Of  course,  the  statute  goes 
upon  the  presumption  that,  since  all  the  parties  cannot  be  served  per- 
sonally with  such  notice,  the  publication,  which  is  designed  to  meet  the 
eyes  of  everybody,  is  to  stand  for  such  notice.  The  publication  itself 
is  sufficient  if  it  had  been  in  the  form  of  a  personal  service  upon  the 
party  himself  within  the  county.  Nor  have  we  any  doubt  that  this  form 
of  warning  owners  of  property  to  appear  and  defend  their  interests, 
where  it  is  subject  to  demands  for  public  use  when  authorized  by  statute, 
is  sufficient  to  subject  the  property  to  the  action  of  the  tribunals  ap- 
pointed by  proper  authority  to  determine  those  matters.  The  owner  of 
real  estate,  who  is  a  non-resident  of  the  State  within  which  the  property 
lies,  cannot  evade  the  duties  and  obligations,  which  the  law  imposes 
upon  him  in  regard  to  such  property,  by  his  absence  from  the  State.  Be- 
cause he  cannot  be  reached  by  some  process  of  the  courts  of  the  State, 
which,  of  course,  have  no  efficacy  beyond  their  own  borders,  he  cannot, 
therefore,  hold  his  property  exempt  from  the  liabilities,  duties,  and  obli- 
gations which  the  State  has  a  right  to  impose  upon  such  property  ;  and 
in  such  cases,  some  substituted  form  of  notice  has  always  been  held  to 
be  a  sufficient  warning  to  the  owner,  of  the  proceedings  which  are 
being  taken  under  the  authority  of  the  State  to  subject  his  property  to 
those  demands  and  obligations.  Otherwise  the  burdens  of  taxation  and 
the  liability  of  such  property  to  be  taken  under  the  power  of  eminent 
domain,  would  be  useless  in  regard  to  a  very  large  amount  of  propertv 
in  every  State  of  the  Union."  In  this  connection,  it  is  well  to  bear  in 
mind,  that  by  the  statutes  of  the  United  States,  in  proceedings  to 
enforce  any  legal  or  equitable  lien,  or  to  remove  a  cloud  upon  the  title 
of  real  estate,  non-resident  holders  of  real  estate  may  be  brought  in  by 
publication,  18  Stat.  472;  and  the  validity  of  this  statute,  and  the 
jurisdiction  conferred  b}-  publication,  has  been  sustained  by  this  court. 
Mellen  v.  Moline  Iron  Works,  131  U.  S.  352. 

These  various  decisions  of  this  court  establish  that,  in  its  judgment, 
a  State  has  power  l)y  statute  to  provide  for  the  adjudication  of  titles  to 
real  estate  within  its  limits  as  against  non-residents  who  are  brought 
into  court  only  by  publication  ;  and  that  is  all  that  is  necessary  to  sus- 
tain the  validity  of  the  decree  in  question  in  this  case. 

Nothing  inconsistent  with  this  doctrine  was  decided  in  Hart  v.  San- 
som,  supra.  The  question  there  was  as  to  the  effect  of  a  judgment. 
That  judgment  was  rendered  upon  a  petition  in  ejectment  against  one 
Wilkerson.  Besides  the  allegations  in  the  petition  to  sustain  the  eject- 
ment against  Wilkerson,  were  allegations  that  other  defendants  named 
had  executed  deeds,  which  were  described,  which  were  clouds  upon 
plaintiffs'  title  ;  and  in  addition  an  allegation  that  the  defendant  Hart 
set  up  some  preteiiflcd  claini  of  title  to  the  land.  This  was  the  only 
averment  connectiiiL;  liiiu  with  tlie  controversy.     Publication  was  made 


316  ARNDT    V.    GRIGGS.  [CHAP.    III. 

against  some  of  the  defendants,  Hart  being  among  the  number.  There 
was  no  appearance,  but  judgment  upon  default.  That  judgment  was, 
that  the  plaintiffs  recover  of  the  defendants  the  premises  described ; 
"  that  the  several  deeds  in  plaintiffs'  petition  mentioned  be,  and  the 
same  are,  hereby  annulled  and  cancelled,  and  for  naught  held,  and  that 
the  cloud  be  thereby  removed  ; "  and  for  costs,  and  that  execution 
issue  therefor.  This  was  the  whole  extent  of  the  judgment  and  decree. 
Obviously  in  all  this  there  was  no  adjudication  affecting  Hart.  As 
there  was  no  allegation  that  he  was  in  possession,  the  judgment  for 
possession  did  not  disturb  him  ;  and  the  decree  for  cancellation  of  the 
deeds  referred  specifically  to  the  deeds  mentioned  in  the  petition,  and 
there  was  no  allegation  in  the  petition  tliat  Hart  had  anything  to  do 
with  those  deeds.  There  was  no  general  language  in  the  decree  quieting 
the  title  as  against  ail  the  defendants  ;  so  there  was  nothing  which  could 
be  construed  as  working  any  adjudication  against  Hart  as  to  his  claim 
and  title  to  the  land.  He  might  apparently  be  affected  by  the  judg- 
ment for  costs,  but  they  had  no  effect  upon  the  title.  So  the  court 
held,  for  it  said  :  "  It  is  difficult  to  see  how  any  part  of  that  judgment 
(except  for  costs)  is  applicable  to  Hart ;  for  that  part  which  is  for 
recovery  of  possession  certainly  cannot  apply  to  Hart,  who  was  not  in 
possession  ;  and  that  part  which  removes  the  cloud  upon  the  plaintiffs' 
title  appears  to  be  limited  to  the  cloud  created  by  the  deeds  mentioned 
in  the  petition,  and  the  petition  does  not  allege,  and  the  verdict  nega- 
tives, that  Hart  held  any  deed." 

An  additional  ground  assigned  for  the  decision  was  that  if  there  was 
any  judgment  (except  for  costs)  against  Hart,  it  was,  upon  the  most 
liberal  construction,  only  a  decree  removing  the  cloud  created  by  his 
pretended  claim  of  title,  and  therefore,  according  to  the  ordinary  and 
undisputed  rule  in  equity,  was  not  a  judgment  in  rem,  establishing 
against  him  a  title  in  the  land.  But  the  power  of  the  State,  by  appro- 
priate legislation,  to  give  a  greater  effect  to  such  a  decree  was  dis- 
tinctly recognized,  both  by  the  insertion  of  the  words  "  unless  otherwise 
expressly  provided  by  statute,"  and  by  adding:  "  It  would  doubtless 
be  within  the  power  of  the  State  in  which  the  land  lies  to  provide  by 
statute  that  if  the  defendant  is  not  found  within  the  jurisdiction,  or 
refuses  to  make  or  to  cancel  a  deed,  this  should  be  done  in  his  behalf 
by  a  trustee  appointed  by  the  court  for  that  purpose."  And  of  course  it 
follows  that  if  a  State  has  power  to  bring  in  a  non-resident  by  publica- 
tion for  the  purpose  of  appointing  a  trustee,  it  can,  in  like  manner, 
bring  him  in  and  subject  him  to  a  direct  decree.  There  was  presented 
no  statute  of  the  State  of  Texas  providing  directly  for  quieting  the  title 
of  lands  within  the  State,  as  against  non-residents,  brought  in  only  by 
service  by  publication,  such  as  we  have  in  the  case  at  bar,  and  the 
only  statute  cited  by  counsel  or  referred  to  in  the  opinion  was  a  mere 
general  provision  for  bringing  in  non-resident  defendants  in  any  case 
by  publication  ;  and  it  was  not  the  intention  of  the  court  to  overthrow 
that  series  of  earlier  authorities  heretofore  referred  to,  which  affirm  the 


SECT.    I.]      TYLER   V.   JUDGES    OF   THE    COURT   OF   REGISTRATION.     317 

power  of  the  State,  l)y  suitable  statutory  proceedings,  to  determine  the 
titles  to  real  estate  within  its  limits,  as  against  a  non-resident  defend- 
ant, notified  only  by  publication. 

It  follows,  from  these  considerations,  that  the  first  question  presented 
in  the  certificate  of  division,  the  one  heretofore  stated,  and  which  is 
decisive  of  this  case,  must  be  answered  in  the  attirmative.^ 


TYLER  V.   JUDGES  OF  THE  COURT  OF  REGISTRATION. 

Supreme  Judicial  Court  of  Massachusetts.     1900 
[Ilcporled  175  Massachusetts,  71.] 

Holmes,  C.  J.  This  is  a  petition  for  a  writ  of  prohibition  against 
the  judges  of  the  Court  of  Registration,  established  by  St.  1898, 
0.  562,  and  is  brought  to  prevent  their  proceeding  upon  an  applica- 
tion concerning  land  in  which  the  petitioner  claims  an  interest.  The 
ground  of  the  petition  is  that  the  act  establishing  the  court  is  uncon- 
stitutional. Two  reasons  are  urged  against  the  act,  both  of  which  are 
thought  to  go  to  the  root  of  the  statute,  and  to  make  action  under  it 
impossible.  The  first  and  most  important  is,  that  the  original  registra- 
tion deprives  all  persons  except  the  registered  owner  of  any  interest  in 
the  land,  without  due  process  of  law.  There  is  no  dispute  that  the 
object  of  the  S3'stem.  expressed  in  sect.  38,  is,  that  the  decree  of  regis- 
tration "  shall  bind  the  land  and  quiet  the  title  thereto,"  and  "shall  be 
conclusive  upon  and  against  all  persons,"  whether  named  in  the  pro- 
ceedings or  not,  subject  to  few  and  immaterial  exceptions ;  and,  this 
being  admitted,  it  is  objected  that  there  is  no  sufficient  process  against, 
or  notice  to,  persons  having  adverse  claims,  in  a  proceeding  intended 
to  bar  their  possible  rights. 

The  application  for  registration  is  to  be  in  writing,  and  signed  and 
sworn  to.  It  is  to  contain  an  accurate  description  of  the  land,  to  set 
forth  clearly  other  outstanding  estates  or  interests  known  to  the  peti- 
tioner, to  identify  the  deed  by  which  he  obtained  title,  to  state  the 
name  and  address  of  the  occupant,  if  there  is  one,  and  also  to  give  the 
names  and  addresses,  so  far  as  known,  of  the  occupants  of  all  lands 
adjoining  (sect.  21).  As  soon  as  it  is  filed,  a  memoiandum  containing 
a  copy  of  the  description  of  the  land  concerned  is  to  be  filed  in  the 
registry  of  deeds  (sect.  20).  The  case  is  immediatel}'  referred  to  an 
examiner  appointed  by  the  judge  (sect.  12),  who  makes  as  full  an  in- 
vestigation as  he  can,  and  reports  to  the  court  (sect.  29).  If,  in  the 
opinion  of  the  examiner,  th(^  applicant  has  a  good  title,  as  alleged,  or 
if  the  applicant,  after  an  adverse  opinion,  elects  to  proceed  further,  the 

1  Jcc.  McLaughlin  i-.  McCrory,  55  .\rk.  442,  18  S.  W.  762  ;  Loaiza  v.  Superior 
Court,  85  Cal.  11,  24  Pac.  707  ;  Felcli  v.  Hooper,  119  Mass.  52  ;  Short  v.  CaUlwell,  155 
Mass.  57,  28  N.  E.  1124.-  Kd. 


318    TYLER    V.    JUDGES    OF   THE    COURT   OF   REGISTRATION.    [CHAP.  III. 

recorder  is  to  publish  a  notice,  by  order  of  the  court,  in  some  news- 
paper published  in  the  district  where  any  portion  of  the  land  lies.  This 
notice  is  to  be  addressed,  by  name,  to  all  persons  known  to  have  an 
adverse  interest,  and  to  the  adjoining  owners  and  occupants,  so  far  as 
known,  and  to  all  whom  it  may  concern.  It  is  to  contain  a  description 
of  the  land,  the  name  of  the  applicant,  and  the  time  and  place  of  the 
hearing  (sect.  31).  A  copy  is  to  be  mailed  to  ever}-  person  named  in  the 
notice  whose  address  is  known,  and  a  duly  attested  copy  is  to  be  posted 
in  a  conspicuous  place  on  each  parcel  of  land  included  in  the  apphca- 
tion,  by  a  sheriff  or  deputy  sheriff,  fourteen  days  at  least  before  the 
return  day.     Further  notice  may  be  ordered  b}'  the  court  (sect.  32). 

It  will  be  seen  that  the  notice  is  required  to  name  all  persons  known 
to  have  an  adverse  interest,  and  this,  of  course,  includes  any  adverse 
claim,  whether  admitted  or  denied,  that  may  have  been  discovered  by 
the  examiner,  or  in  any  way  found  to  exist.  Taking  this  into  account, 
we  should  construe  the  requirement  in  sect.  21,  concerning  the  appli- 
cation, as  calling  upon  the  applicant  to  mention,  not  merely  outstanding 
interests  which  he  admits,  but  equally  all  claims  of  interest  set  up, 
although  denied  by  him.  We  mention  this  here  to  dispose  of  an  ob- 
jection of  detail  urged  by  the  petitioner,  and  we  pass  to  the  general 
objection  that,  however  construed,  the  mode  of  notice  does  not  satisfy 
the  constitution,  either  as  to  persons  residing  within  the  State  upon 
whom  it  is  not  served,  or  as  to  persons  residing  out  of  the  State  and 
not  named. 

If  it  does  not  satisfy  the  constitution,  a  judicial  proceeding  to  clear 
titles  against  all  the  world  hardh'  is  possible;  for  the  very  meaning  of 
such  a  proceeding  is  to  get  rid  of  unknown  as  well  as  known  claims,  — 
indeed,  certainty  against  the  unknown  may  be  said  to  be  its  chief  end  ; 
and  unknown  claims  cannot  be  dealt  with  by  personal  service  upon  the 
claimant.  It  seems  to  have  been  the  impression  of  the  Supreme  Court 
of  Ohio,  in  the  case  most  relied  upon  by  the  petitioner,  that  such  a 
judicial  proceeding  is  impossible  in  this  country.  State  v.  Guilbert,  56 
Ohio  St.  575,  629,  47  N.  E.  551.  But  we  cannot  bring  ourselves 
to  doubt  that  the  constitutions  of  the  United  States  and  of  Massachu- 
setts at  least  permit  it  as  fully  as  did  the  common  law.  Prescription 
or  a  statute  of  limitations  may  give  a  title  good  against  the  world,  and 
destroy  all  manner  of  outstanding  claims,  without  any  notice  or  judicial 
proceeding  at  all.  Time,  and  the  chance  which  it  gives  the  owner  to 
find  out  that  he  is  in  danger  of  losing  rights,  are  due  process  of  law  in 
that  case.  Wheeler  v.  Jackson,  137  U.  S.  245,  258.  The  same  result 
used  to  follow  upon  proceedings  which,  looked  at  apart  from  history, 
ma}^  be  regarded  as  standing  half-way  between  statutes  of  limitations 
and  true  judgments  in  rem,  and  which  took  much  less  trouble  about 
giving  notice  than  the  statute  before  us.  We  refer  to  the  effect  of  a 
judgment  on  a  writ  of  right  after  the  mise  joined  and  the  lapse  of  a 
year  and  a  day  (Booth,  Real  Act.  101,  in  margin  ;  Fitzh.  Abr.  "  Con- 
tinual Claim,"   pi.  7  ;    Faux  Recovere,  pi.  1 ;   Y.  B.  5  Edw.  III.  51,. 


SKCT,    I.]      TYLER    V.    JUDGES   OF   THE    COUUT    OF    KliLJlSTliATION.      319 

pi.  GO)  ;  and  of  a  fine,  with  proclamations  after  the  same  time  ;  or  by  a 
later  statute  after  five  3'ears  (2  Bl.  Coram.  354;  2  Inst.  510,  518;  St. 
18  Edw.  I.,  ''Modus  Levandi  Fines;"  St.  34  Edw.  III.  c.  16;  St. 
4  Hen.  VII.  c.  24  ;  St.  32  Hen.  VIII.  c.  36).  It  would  have  astonished 
John  Adams  to  be  told  that  the  framers  of  our  constitution  had  put  an 
end  to  the  possihilit}'  of  these  ancient  institutions.  A  somewhat  similar 
statutor}'  contrivance  of  modern  days  has  been  held  good.  Turner  i\ 
People,  168  U.  S.  90.  Finally,  as  was  [)ointed  out  by  the  counsel  for 
the  petitioners,  a  proceeding  in  rent,  in  the  proper  sense  of  the  words, 
might  give  a  clear  title  without  other  notice  than  a  seizure  of  the  I'es 
and  an  exhibition  of  the  warrant  to  those  in  charge.  2  Browne,  Civil 
Law,  398.  The  general  requirement  of  advertisement  in  admiralty 
cases  is  said  to  be  due  to  rules  of  court.  U.  S.  Adm.  Rule  9  ;  Betts, 
Adm.  (1838)  33,  34,  App.  14. 

The  prohibition  in  the  Fourteenth  Amendment  against  a  State  de- 
priving any  person  of  his  propert}-  without  due  process  of  law,  and  that 
in  the  twelfth  article  of  the  Massachusetts  Bill  of  Rights,  refer  to  some- 
what vaguel}'  determined  criteria  of  justification,  which  ma}'  be  found 
in  ancient  practice  (Murray's  Lessee  i'.  Improvement  Co.,  18  How. 
272,  277)  ;  or  which  may  be  found  in  convenience  and  substantial  jus- 
tice, although  the  form  is  new.  (Hurtado  v.  California,  110  U.  S.  516, 
528,  531  ;  Holden  v.  Hardy,  169  U.  S.  366,  388,  389.)  The  prohibi- 
tions must  be  taken  largely'  with  a  regard  to  substance  rather  than  to 
form,  or  they  are  likely  to  do  more  harm  than  good.  It  is  not  enough 
to  show  a  procedure  to  be  unconstitutional  to  say  that  we  never  have 
heard  of  it  before.  Hurtado  o,  California,  110  U.  S,  516,  537.  Looked 
at  either  from  the  point  of  view  of  history  or  of  the  necessary  require- 
ments of  justice,  a  proceeding  /w  rem,  dealing  with  a  tangible  res,  may 
be  instituted  and  carried  to  judgment  without  personal  service  upon 
claimants  within  the  State,  or  notice  by  name  to  those  outside  of  it,  and 
not  encounter  any  provision  of  either  constitution.  Jurisdiction  is 
secured  by  the  power  of  the  court  over  the  res.  As  we  have  said,  such 
a  proceeding  would  be  impossible  were  this  not  so  ;  for  it  hardly  would 
do  to  make  a  distinction  between  the  constitutional  rights  of  claimants 
who  were  known  and  those  who  were  not  known  to  the  plaintiff,  when 
the  proceeding  is  to  bar  all.  Pennoyer  /•.  Neff,  95  U.  S.  714,  727  ; 
"The  Mary,"  9  Cranch,  126,  144;  Mankin  v.  Chandler,  2  Brock. 
125,  127,  Fed.  Cas.  No.  9030;  Brown  r.  Board,  50  Miss.  468,  481, 
2  Freem.  Judgm.  (4th  ed.)  §§  606,  611.  In  Hamilton  v.  Brown, 
161  U.  S.  256,  a  judgment  of  escheat  was  held  conclusive  upon  persons 
notified  only  by  advertisement,  to  all  persons  interested.  It  is  true 
that  the  statute  under  consideration  required  the  petition  to  name  all 
known  claimants,  and  personal  service  to  be  made  on  those  so  named. 
But  that  did  the  plaintiffs  no  good,  as  they  were  not  named.  So,  a 
decree  allowing  or  disallowing  a  will  binds  everybody,  although  the 
only  notice  of  the  proceedings  given  be  a  general  notice  to  all  persons 
interested.     And  in  this  case,  as  in  llial  of  escheat  just  cited,  the  con- 


320    TYLER   V.   JUDGES    OF   THE    COURT   OF    REGISTRATION.    [CHAP.  III. 

elusive  effect  of  the  decree  is  not  put  upon  tlie  ground  that  the  State 
has  an  absolute  power  to  determine  the  persons  to  whom  a  man's  prop- 
erty shall  go  at  his  death,  but  upon  the  characteristics  of  a  proceed- 
ing m  rem.  Bonneraort  v.  Gill,  167  Mass.  338,  340,  45  N.  E. 
768.  See  161  U.  S.  263,  274.  Admiralty  proceedings  need  only  to 
be  mentioned  in  this  connection,  and  further  citation  of  cases  seems 
unnecessar}'. 

Speaking  for  myself,  I  see  no  reason  why  what  we  have  said  as  to 
proceedings  in  rem  in  general  should  not  apply  to  such  proceedings 
concerning  land.     In  Arndt  v.  Griggs,  134  U.  S.  316,  327,  it  is  said  to 
be  estabUshed  that  "  a  State  has  power,  by  statute,  to  provide  for  the 
adjudication  of  titles  to  real  estate  within  its  limits  as  against  non- 
residents who  are  brought  into  court  only  by  pubUcation."     In  Hamil- 
ton V.  Brown,  161  U.  S.  256,  274,  it  was  declared  to  be  within  the 
power  of  a  State  "  to  provide  for  determining  and  quieting  the  title  to 
real  estate  within  the  limits  of  the  State,  and  within  the  jurisdiction  of 
the  court,  after  actual  notice  to  all  known  claimants,  and  notice  by 
publication  to  all  other  persons."     I  doubt  whether  the  court  will  not 
take  the  further  step  when  necessary,  and  declare  the  power  of  the 
States  to  do  the  same  thing  after  notice  by  publication  alone.     See 
Huling  V.  Improvement  Co.,  130  U.  S.  559,  564  ;   Parker  v.  Overman, 
18  How.  137,  140,  141,     But  in  the  present  case  provision  is  made  for 
notice  to  all  known  claimants  by  the  recorder,  who  is  to  mail  a  copy  of 
the  published  notice  to  every  person  named  therein  whose  address  is 
known  (sect.  32).     We  shall  state  in  a  moment  one  reason  for  thinking 
this  form  of  notice  constitutional.     See,  further.  Cook  v.  Allen,  2  Mass. 
462,  469,  470  ;  Dascomb  v.  Davis,  5  Met.  335,  340  ;  Brock  v.  Railroad 
Co.,  146  Mass.  194,  195,  15  K  E.  555. 

But  it  is  said  that  this  is  not  a  proceeding  in  rem.  It  is  certain  that 
no  phrase  has  been  more  misused.  In  the  past  it  has  had  little  more 
significance  than  that  the  right  alleged  to  have  been  violated  was  a 
right  in  rem.  Austin  thinks  it  necessary  to  quote  Leibnitz  for  the 
sufficiently  obvious  remark  that  every  right  to  restitution  is  a  right  in 
perso?iam.  So  as  to  actions.  If  the  technical  object  of  the  suit  is  to 
establish  a  claim  against  some  particular  person,  with  a  judgment  which 
generally,  in  theory  at  least,  binds  his  body,  or  to  bar  some  individual 
claim  or  objection,  so  that  only  certain  persons  are  entitled  to  be  heard 
in  defence,  the  action  is  in  personam,  although  it  may  concern  the 
right  to,  or  possession  of,  a  tangible  thing.  Mankin  v.  Chandler, 
2  Brock.  125,  127,  Fed.  Cas.  No.  9030.  If,  on  the  other  hand,  the 
object  is  to  bar  indifferently  all  who  might  be  minded  to  make  an  objec- 
tion of  any  sort  against  the  right  sought  to  be  established,  and  if  any 
one  in  the  world  has  a  right  to  be  heard  on  the  strength  of  alleging 
facts  which,  if  true,  show  an  inconsistent  interest,  the  proceeding  is  in 
rem.  2  Freem.  Judgm.  (4th  ed.)  §  606,  ad  Jin.  All  proceedings, 
like  all  rights,  are  really  against  persons.  Whether  they  are  proceed- 
ings or  rights  in  rein  depends  on  the  number  of  persons  affected. 


SECT.    I.]      TYLER   V.    JUDGES    OF   THE   COURT   OF    REGISTRATION.     321 

Hence  the  res  need  not  be  personified,  and  made  a  party  defendant,  as 
happens  with  the  ship  in  the  admiralt}'.  It  need  not  even  be  a  tangible 
thing  at  all,  as  sufficiently  appears  by  the  case  of  the  probate  of  wills. 
Personification  and  naming  the  res  as  defendant  are  mere  symbols,  not 
the  essential  matter.  They  are  fictions,  conveniently  expressing  the 
nature  of  the  process  and  the  result,  nothing  more. 

It  is  true,  as  an  historical  fact,  that  these  symbols  are  used  in  admi- 
ralty proceedings  ;  and  also,  again,  merely  as  an  historical  fact,  that 
[jroceedings  in  rem  have  been  confined  to  cases  where  certain  classes  of 
claims,  although  of  very  divers  sorts,  for  indemnification  for  injury,  for 
wages,  for  salvage,  etc.,  are  to  be  asserted.  But  a  ship  is  not  a  person. 
It  cannot  do  a  wrong  or  make  a  contract.  To  say  that  a  ship  has  com- 
mitted a  tort  is  merely  a  shorthand  way  of  saying  that  you  have  decided 
to  deal  with  it  as  if  it  had  committed  one,  because  some  man  has  com- 
mitted one  in  fact.  There  is  no  a  priori  reason  wh}-  any  other  claim 
should  not  be  enforced  in  the  same  way.  If  a  claim  for  a  wrong  com- 
mitted b}-  a  master  may  be  enforced  against  all  interests  in  the  vessel, 
there  is  no  juridical  objection  to  a  claim  of  title  being  enforced  in  the 
same  way.  The  fact  that  it  is  not  so  enforced  under  existing  practice . 
affords  no  test  of  the  powers  of  the  legislature.  The  contrary  view 
would  indicate  that  you  really  believed  the  fiction  that  a  vessel  had 
an  independent  personality  as  a  fact  behind  the  law.  Furthermore, 
naming  the  7'es  as  defendant,  although  a  convenient  way  of  indicating 
that  the  proceeding  is  against  property  alone,  — tliat  is  to  sa}-,  that  it 
is  not  to  establish  an  infinite  personal  liability,  —  is  not  of  the  essence. 
If,  in  fact,  the  proceeding  is  of  that  sort,  and  is  to  bar  all  the  world,  it 
is  a  proceeding  in  rem. 

So,  as  to  seizure  of  the  res.  It  is  convenient  in  the  case  of  a  vessel, 
in  order  to  secure  its  being  on  hand  to  abide  judgment,  although  in  the 
case  of  a  suit  against  a  man  jurisdiction  is  regarded  as  established  b}' 
service,  without  the  need  of  keeping  him  in  prison  to  await  judgment. 
It  is  enough  that  the  personal  service  shows  that  he  could  have  been 
seized  and  imprisoned.  Seizure,  to  be  sure,  is  said  to  be  notice  to  the 
owner.  Scott  v.  Shearman,  2  W.  Bl.  977,  979  ;  Mankin  v.  Chandler, 
2  Brock.  125,  127,  Fed.  Cas.  No.  9030.  But  fastening  the  process  or 
a  copy  to  the  mast  would  seem  not  necessarily  to  depend  for  its  eflfect 
upon  the  continued  custody  of  the  vessel  by  the  marshal.  However 
this  may  be,  when  we  come  to  deal  with  immovables,  there  would  be  no 
sense  whatever  in  declaring  seizure  to  be  a  constitutional  condition  of 
the  power  of  the  legislature  to  make  a  proceeding  in  rem.  Hamilton  v. 
Brown,  161  U.  S.  256,  274.  The  land  cannot  escape  from  the  jurisdic- 
tion, and,  except  as  security  against  escape,  seizure  is  a  mere  form  of 
no  especial  sanctity,  and  of  much  possible  inconvenience. 

I  do  not  wish  to  ignore  the  fact  that  seizure,  when  it  means  real 
dispossession,  is  another  s(!curity  for  actual  notice.  But  when  it  is 
considered  how  purely  formal  sucli  an  act  may  be,  and  that  even  ad- 
verse possession  is  possible  without  ever  coming  to  the  knowledge  of 

n 


322     TYLER   V.    JUDGES    OF   THE   COURT    OF   REGISTRATION.    [CHAP.  III. 

a  reasonabl}-  alert  owner,  I  cannot  think  that  the  presence  or  absence 
of  the  form  makes  a  constitutional  difference  ;  or,  rather,  to  express 
my  view  still  more  cautiously,  I  cannot  but  think  that  the  immediate 
recording  of  the  claim  is  entitled  to  equal  effect  from  a  constitutional 
point  of  view.  I  am  free  to  confess,  however,  that,  with  the  rest  of  my 
brethren,  I  think  the  act  ought  to  be  amended  in  the  direction  of  still 
further  precautions  to  secure  actual  notice  before  a  decree  is  entered, 
and  that,  if  it  is  not  amended,  the  judges  of  the  court  ought  to  do 
all  that  is  in  their  power  to  satisfy  themselves  that  there  has  been  no 
failure  in  this  regard  before  they  admit  a  title  to  registration. 

The  quotations  which  we  have  made  show  the  intent  of  the  statute 
to  bind  the  land,  and  to  make  the  proceedings  adverse  to  all  the  world, 
even  if  it  were  not  stated  in  sect.  35,  or  if  the  amendment  of  1899  did 
not  expressly  provide  that  they  should  be  proceedings  in  rem.  St. 
1899,  c.  131,  §  1.  Notice  is  to  be  posted  on  the  land  just  as  admi- 
ralty process  is  fixed  to  the  mast.  Any  person  claiming  an  interest 
may  appear  and  be  heard  (sect.  34). 

But  perhaps  the  classification  of  the  proceeding  is  not  so  important 
as  the  course  of  the  discussion  thus  far  might  seem  to  imply.  I  have 
pursued  that  course  as  one  which  is  satisfactory  to  my  own  mind  ;  but, 
for  the  purposes  of  decision,  a  majority  of  the  court  prefer  to  assume 
that  in  cases  in  which,  under  the  constitutional  requirements  of  due 
process  of  law,  it  heretofore  has  been  necessary  to  give  to  parties  inter- 
ested actual  notice  of  the  pending  proceeding  by  personal  service  or  its 
equivalent,  in  order  to  render  a  valid  judgment  against  them,  it  is  not 
in  the  power  of  the  legislature,  by  changing  the  form  of  the  proceeding 
from  an  action  in  personam  to  a  suit  in  rem.,  to  avoid  the  necessity  of 
giving  such  a  notice,  and  to  assume  that,  under  this  statute,  personal 
rights  in  property  are  so  involved,  and  may  be  so  affected,  that  effectual 
notice,  and  an  opportunity  to  be  heard,  should  be  given  to  all  claimants 
who  are  known,  or  who  by  reasonable  eftbrt  can  be  ascertained. 

It  would  hardly  be  denied  that  the  statute  takes  great  precautions  to 
discover  outstanding  claims,  as  we  already  have  shown  in  detail,  or 
that  notice  by  publication  is  sufficient  with  regard  to  claimants  outside 
the  State.  With  regard  to  claimants  living  within  the  State,  and  re- 
maining undiscovered,  notice  by  publication  must  suffice,  of  necessity. 
As  to  claimants  living  within  the  State  and  known,  the  question  seems  ta 
come  down  to  whether  we  can  say  that  there  is  a  constitutional  difference 
between  sending  notice  of  a  suit  by  a  messenger  and  sending  it  by  the 
post-office,  besides  publishing  in  a  newspaper,  recording  in  the  registry, 
and  posting  on  the  land.  It  must  be  remembered  that  there  is  no  con- 
stitutional requirement  that  the  summons,  even  in  a  personal  action, 
shall  be  served  by  an  officer,  or  that  the  copy  served  shall  be  officially 
attested.  Apart  from  local  practice,  it  may  be  served  by  any  indif- 
ferent person.  It  may  be  served  on  residents  by  leaving  a  copy  at  the 
last  and  usual  place  of  abode.  When  we  are  considering  a  proceeding 
of  this  kind,  it  seems  to  us  within  the  power  of  the  legislature  to  say 


SECT.    II.]  BUCHANAN    V.   RUCKER.  323 

that  the  mail,  as  it  is  managed  in  ^Massachusetts,  is  a  sufficient  mes- 
senger to  convej'  the  notice,  when  other  means  of  notifying  the  party, 
like  publishing  and  posting,  also  are  required.  We  agree  that  such  an 
act  as  this  is  not  to  be  upheld  without  anxiety.  But  the  difference  in 
degree  between  the  case  at  bar  and  one  in  which  the  constitutionality 
of  the  act  would  be  unquestionable  seems  to  us  too  small  to  warrant  a 
distinction.  If  the  statute  is  within  the  power  of  the  legislature,  it  is 
not  for  us  to  criticise  the  wisdom  or  expediency  of  what  the  legislature 
has  done. 

We  do  not  think  it  necessary  to  refer  to  the  elaborate  collection  of 
statutes  presented  by  the  attorney -general  for  the  purpose  of  showing 
that  the  principle  of  the  present  act  is  old.  Although  no  question  is 
made  on  that  point,  we  may  mention  that  an  appeal  is  given  to  the 
Superior  Court,  with  the  right  to  claim  a  jurj'.  In  our  opinion,  the 
main  objection  to  the  act  fails.  See  Shepherd  v.  Ware,  46  Minn.  174, 
48  N.  W.  773  ;  People  v.  Simon,  176  111.  165,  52  N.  E.  910  ;  Short  v. 
Caldwell,  155  Mass.  57,  59,  28  N.  E.  1124;  Loring  v.  Hildreth,  170 
Mass.  328,  49  N.  E.  652.^ 

LoRiNG  and  Lathrop,  JJ.,  dissented. 


SECTION  II. 

PERSONAL   JURISDICTION. 


BUCHANAN   y.    RUCKER. 

King's  Bench.     1808. 

[Reported  9  East,  192.] 

The  plaintiff  declared  in  assumpsit  for  £2,000  on  a  foreign  judgment 
of  the  Island  Court  in  Tobago  ;  and  at  the  trial  (  Vide  1  Campbell's 
Ni.  Pri.  Cas.  63)  before  Lord  Ellenborough,  C.  J.,  at  Guildhall,  pro- 
duced a  copy  of  the  proceedings  and  judgment,  certified  under  the 
handwriting  of  the  Chief  Justice  and  the  seal  of  the  island,  which 
were  proved  ;  which,  after  containing  an  entry  of  the  declaration,  set 
out  a  summons  to  the  defendant,  therein  described  as  "  formerly  of 
the  city  of  Dunkirk,  and  now  of  the  city  of  London,  merchant,"  to 
appear  at  the  ensuing  court  to  answer  the  plaintiff's  action ;  which 
summons  was  returned  "  served,  etc.,  by  nailing  up  a  copy  of  the 
declaration  at  the  court-house  door,"  etc.,  on  which  judgment  was 
afterwards  given  by  default.  Whereupon  it  was  objected,  that  the 
judgment  was  obtained  against  tlie  defendant,  who  never  appeared  to 
have  been  within  the  limits  of  the  island,  nor  to  have  had  any  attorney 
there ;  nor  to  have  been  in  any  other  waj'  subject  to  the  jurisdiction  of 

^  The  remainder  of  the  opinion  and  the  dissenting  opinion  are  omitted.  —  Ed. 


324  BUCHANAN  V.    RUCKER.  [CHAP.  III. 

the  court  at  the  time  ;  and  was  therefore  a  nullity.  And  of  this  opinion 
was  Lord  EUenborough  ;  though  it  was  alleged  (of  which  however  there 
was  no  other  than  parol  proof)  that  this  mode  of  summoning  absentees 
was  warranted  by  a  law  of  the  island,  and  was  commonly  practised 
there  ;  and  the  plaintiff  was  thereupon  nonsuited.     And  now 

Taddy  moved  to  set  aside  the  nonsuit,  and  for  a  new  trial,  on  an 
affidavit  verifying  the  island  law  upon  this  subject,  which  stated, 
"  That  every  defendant  against  whom  any  action  shall  be  entered, 
shall  be  served  with  a  summons  and  an  office  copy  of  the  declaration, 
with  a  copy  of  the  account  annexed,  if  any,  at  the  same  time,  by  the 
Provost  Marshal,  etc.,  six  days  before  the  sitting  of  the  next  court, 
etc. ;  and  the  Provost  Marshal  is  required  to  serve  the  same  on  each 
defendant  in  person.  But  if  such  defendant  cannot  be  found,  and  is 
not  absent  from  the  island ;  then  it  shall  be  deemed  good  service  by 
leaving  the  summons,  etc.,  at  his  most  usual  place  of  abode.  And  if 
the  defendant  be  absent  from  the  island,  and  hath  a  power  of  attorney 
recorded  in  the  secretary's  or  registrar's  office  of  Tobago,  and  the 
attorney  be  resident  in  the  island,  or  any  manager  or  overseer  on  his 
plantation  in  the  island,  the  service  shall  be  either  upon  such  attorney 
personally,  or  by  leaving  it  at  his  last  place  of  abode,  or  upon  such 
overseer  or  manager  personally,  or  by  leaving  it  at  the  house  upon  the 
defendant's  plantation  where  the  overseer  or  manager  usually  resides. 
But  if  no  such  attorney,  overseer,  or  manager,  then  the  nailing  up  a 
copy  of  the  declaration  and  summons  at  the  entrance  of  the  court- 
house shall  be  held  good  service." 

Lord  Ellenborough,  C.  J.  There  is  no  foundation  for  this  motion 
even  upon  the  terms  of  the  law  disclosed  in  the  affidavit.  By  persons 
absent  from  the  island  must  necessarily  be  understood  persons  who 
have  been  present  and  within  the  jurisdiction,  so  as  to  have  been 
subject  to  the  process  of  the  court ;  but  it  can  never  be  applied  to  a 
person  who  for  aught  appears  never  was  present  within  or  subject  to 
the  jurisdiction.  Supposing,  however,  that  the  act  had  said  in  terms, 
that  though  a  person  sued  in  the  island  had  never  been  present  within 
the  jurisdiction,  yet  that  it  should  bind  him  upon  proof  of  nailing  up 
the  summons  at  the  court  door :  how  could  that  be  obligatory  upon  the 
subjects  of  other  countries?  Can  the  island  of  Tobago  pass  a  law  to 
bind  the  rights  of  the  whole  world  ?  Would  the  world  submit  to  such 
an  assumed  jurisdiction?  The  law  itself,  however,  fairly  construed, 
does  not  warrant  such  an  inference:  for  "absent  from  the  island" 
must  be  taken  only  to  apply  to  persons  who  had  been  present  there, 
and  were  subject  to  the  jurisdiction  of  the  court  out  of  which  the 
process  issued  ;  and  as  nothing  of  that  sort  was  in  proof  here  to  show 
that  the  defendant  was  subject  to  the  jurisdiction  at  the  time  of  com- 
mencing the  suit,  there  is  no  foundation  for  raising  an  assumpsit  in  law 
upon  the  judgment  so  obtained.     Per  Curiam.  Bule  refused.^ 

1  Ace.  Wood  V.  Watkinson,  17  Conn.  500  ;  Howell  v.   Gordon,  40  Ga.  302 ;  Beard 
V.  Beard,  21  Ind.  321  ;  Rand  v.  Hanson,   154  Mass.  87  ;  Cocke  v.  Brewer,  68  Miss. 


SECT.    II.]  DOUGLAS   V.   FORREST.  325 

DOUGLAS  V.  FORREST. 

Court  of  Common  Pleas.     1828. 

[Reported  4  Bingham,  686.] 

Best,  C.  J.^  This  was  an  action  brought  bj-  the  assignees  of  Stein 
and  Co.,  bankrupts,  against  the  executor  of  the  will  of  John  Hunter. 

On  the  31st  Ma}-,  1799,  the  testator  acknowledged  himself  to  be 
indebted  to  Stein  and  Co.  in  the  sum  of  £447  ^s.  Sd. ;  and  on  the 
11th  June,  in  the  same  year,  he  acknowledged  that  he  owed  £75  to 
Robert  Smith,  one  of  the  bankrupts,  and  one  of  the  firm  of  Stein  and 
Co.  These  debts  were  contracted  in  Scotland,  of  which  country  the 
deceased  was  a  native,  and  in  which  he  had  a  heritable  property. 
Shortl}'  after  the  year  1799,  the  deceased  went  to  India.  He  died  in 
India  in  1817,  having  never  revisited  Scotland. 

On  the  25th  February,  1802,  two  decrees  were  pronounced  in  the 
Court  of  Session  in  Scotland  against  the  deceased,  one  at  the  instance 
of  Stein  and  Co.,  and  the  other  at  the  instance  of  Robert  Smith.  In 
the  first  of  these  the  deceased  was  ordered  to  pay  to  Stein  and  Co. 
£447  6s.  3d.,  with  interest,  from  the         day  of  besides  expenses 

of  process,  etc.  In  the  second  decree  the  deceased  was  ordered  to  pay 
Robert  Smith  the  sum  of  £75,  with  interest,  from  the         of  , 

besides  expenses  of  process,  etc.  It  appeared,  from  these  decrees, 
that  the  deceased  was  out  of  Scotland  at  the  time  the  proceedings 
were  instituted  in  these  causes.  He  never  had  an}'  notice  of  those 
proceedings.  The  decrees  stated,  that  the  deceased  had  been  (accord- 
ing to  the  law  of  Scotland)  summoned  at  the  market  cross  of  Edinburgh, 
and  at  the  pier  and  shore  of  Leith.  A  Scotch  advocate  proved,  that, 
by  the  law  of  Scotland,  the  Court  of  Session  might  pronounce  judgment 
against  a  native  Scotchman  wlio  had  heritable  property  in  that  country, 
for  a  debt  contracted  in  Scotland,  although  the  debtor  had  no  notice  of 
an}'  of  the  proceedings,  and  was  out  of  Scotland  at  the  time.  After 
such  proclamations  as  were  mentioned  in  these  decrees  had  been  made, 
the  same  witness  proved,  that  a  i)orson  against  whom  such  a  decree  was 
pronounced  might,  at  any  time  within  forty  years,  dispute  the  merits 
of  such  decree  ;  but  that  after  tlie  expiration  of  forty  years,  it  was 
conclusive  against  him,  and  all  who  claimed  under  him. 

By  a  decree  of  tlie  Court  of  Session,  of  the  date  of  the  5th  July,  1804, 
that  court  adjudged  that  certain  property  which  tlie  deceased  possessed 
in  Scotland  sliould  l)elong  to  Robert  Smith  and  his  heirs,  in  payment 
and  satisfaction  of  the  sum  of  £75,  with  interest,  from  tlie  Jlth  June, 
1799.     By  another  decree  of  the  same  date,   the   Court  of  Sessions 

775.  9  So.  823  ;  Whittier  v.  Wcmlcll,  7  N.  II.  267  ;  Schwinger  v.  Hickok,  53  N.  Y. 
280  ;  Price  v.  Si'liaefTer,  161  Pa.  530,  29  Atl.  279.— Eu. 
>  Part  of  tlie  ojtiiiion  is  omitted.  —  Eu. 


326  DOUGLAS    V.    FORREST.  [CHAP.    III. 

adjudged,  that  certain  other  property  of  the  deceased  in  Scotland 
should  belong  to  Stein  and  Co.  and  their  heirs,  in  payment  and  satis- 
faction of  the  sum  of  £447  6s.  3d.,  with  interest,  from  the  11th  of 
June,  1799.  The  two  last  decrees  fill  up  the  blanks  left  in  the  first 
decrees,  b}'  giving  the  time  from  which  interest  was  to  be  paid  on  the 
debts,  namel}',  from  the  11th  June,  1799;  and  if  the  plaintiffs  can 
maintain  their  action,  entitles  them  to  a  verdict  for  the  sum  of  £862. 
The  terras  in  which  the  two  last  decrees  are  expressed,  seem  to  import 
that  the  lands  adjudged  to  Stein  and  Co.  and  Smith  were  given  to  and 
accepted  b}'  them,  in  satisfaction  of  these  debts ;  but  this  cannot  be 
the  true  construction  of  these  decrees,  because  none  of  the  decrees  are 
conclusive  against  the  deceased  and  those  wlio  claim  under  him,  until 
the  expiration  of  forty  3'ears  from  the  time  of  pronouncing  the  two  first 
decrees.  The  advocate  who  was  examined  in  the  cause  proved,  that 
by  the  law  of  Scotland,  these  decrees  would  not  operate  as  satisfaction 
of  the  debts,  during  the  period  that  the  debtor  had  a  right  to  dispute 
the  validity  of  the  first  judgments.  A  Scotch  statute,  which  we  have 
looked  into,  shows  the  accuracy  of  the  opinion  given  to  us  on  the 
Scotch  laws  by  the  learned  advocate  ;  and  I  feel  it  due  to  him  to  say, 
that,  from  the  manner  in  which  he  gave  his  evidence,  the  clearness  and 
precision  with  which  he  explained  the  grounds  of  his  opinion,  I  have 
no  doubt  that  he  is  extremel}'  well  acquainted  with  the  Scotch  law,  and 
that  we  may  safely  rely  on  every  part  of  his  evidence. 

The  two  last  decrees,  proving  that  interest  was  to  run  from  1799, 
and  the  testimony  of  the  learned  advocate,  who  proved,  that  when 
decrees  adjudged  that  interest  should  be  paid,  but  did  not  show  the 
time  from  which  it  was  to  run,  interest  was  payable  from  the  time  of 
the  citation, — disposes  of  the  objection  that  no  interest  could  be 
recovered  upon  these  decrees. 

The  plaintiffs  rested  their  claim  on  these  decrees.  The  defendant 
insisted  that  these  decrees  would  not  support  an  action  in  our  courts, 
because  they  were  repugnant  to  the  principles  of  justice,  having  been 
pronounced  whilst  the  deceased  was  at  a  great  distance  from  Scotland, 
and  without  any  notice  given  to  him  that  any  proceedings  were  insti- 
tuted against  him.  This  defence  was  made  on  the  general  issue.  The 
defendant  also  pleaded,  that  the  plaintiff's  cause  of  action  did  not 
accrue  within  six  j-ears  before  the  commencement  of  the  suit.  To  this 
there  was  a  replication,  that  the  deceased,  at  the  time  when  the  cause 
of  action  accrued,  was  beyond  seas,  and  remained  bevond  the  seas 
until  the  year  1817,  when  he  died;  and  that  the  plaintiffs  sued  out 
their  writ  against  the  defendant  within  six  years  after  he  first  took  on 
himself  the  burthen  and  execution  of  the  v/ill  of  the  deceased  in 
Great  Britain,  and  that  he  had  no  other  executor  in  Great  Britain. 
This  replication  was  fully  proved,  and,  therefore,  the  issue  taken  on  it 
was  properl}'  found  for  the  plaintiffs. 

The  questions  to  be  decided  are,  first,  whether  an  action  can  be 
maintained  in  England  on  these  judgments  of  the  Court  of  Session  in 


SECT.    II.  ]  DOUGLAS    V.   FORREST.  327 

Scotland  ;  secondly,  whether  the  replication  is  an  answer  to  the  pleas 
of  the  statute  of  limitations. 

On  the  first  question  we  agree  with  the  defendant's  counsel,  that  if 
these  decrees  are  repugnant  to  the  principles  of  universal  justice,  this 
court  ought  not  to  give  effect  to  them  ;  but  we  think  that  these  decrees 
are  perfecth'  consistent  with  the  principles  of  justice.  If  we  held  that 
they  were  not  consistent  with  the  principles  of  justice,  we  should  con- 
demn the  proceedings  of  some  of  our  own  courts.  If  a  debt  be 
contracted  within  the  city  of  London,  and  the  creditor  issues  a  sum- 
mons against  the  debtor  to  which  a  return  is  made,  that  the  debtor  hath 
nothing  within  the  city  by  which  he  may  be  summoned,  or,  in  plainer 
words,  hath  nothing  b}'  the  seizure  of  wliich  his  appearance  may  be  en- 
forced, goods  belonging  to  the  del)tor  in  the  hands  of  a  third  person, 
or  mone}'  due  from  a  third  person  to  the  debtor,  may  be  attached  ;  and 
unless  the  debtor  appears  within  a  year  and  a  da}-,  and  disputes  his 
debt,  he  is  forever  deprived  of  his  property  or  the  debts  due  to  him. 

In  such  cases  the  defendant  may  be  in  the  East  Indies  whilst  the 
proceedings  are  going  on  against  him  in  a  court  in  London,  and  may 
not  know  that  any  such  proceedings  are  instituted.  Instead  of  the 
forty  years  given  b}'  the  Scotch  law,  he  has  only  one  year  given  to  him 
to  appear  and  prevent  a  decision  that  finally  transfers  from  him  his 
propert}-.  Lord  Chief  Justice  De  Grey  thought  this  custom  of  foreign 
attachment  was  an  unreasonable  one,  but  it  has  existed  from  the  earliest 
times  in  London,  and  in  other  towns  in  England,  and  in  many  of  our 
colonies  from  their  first  establishment.  Lord  Chief  Justice  De  Grey  and 
the  Court  of  Common  Pleas,  after  much  consideration,  decided  against  the 
validit}'  of  the  attachment,  according  to  the  report  of  Fisher  v.  Lane  in 
3  Wilson,  297,  because  the  part}-  objecting  to  it  had  never  been  sum- 
moned or  had  notice.  The  report  of  the  same  case  in  2  Blackstone, 
834,  shows  that  the  court  did  not  think  a  personal  summons  necessary, 
or  any  summons  that  could  convoy  any  information  to  the  person  sum- 
moned, but  a  summons  with  a  return  of  7iihil;  that  is,  such  a  summons 
as  I  have  mentioned,  namely,  one  that  shows  that  the  debtor  is  not 
within  the  city,  and  has  nothing  there,  b}'  the  seizing  of  which  he  may 
be  compelled  to  appear.  The  54  G.  III.  c.  137  not  only  recognizes  the 
practices  on  which  these  decrees  are  founded,  as  being  according  to  the 
law  of  Scotland,  but  enacts,  that  on  notices  being  given  at  the  market 
cross  at  Edinburgh,  and  on  the  pier  and  shore  of  Leith,  to  debtors  out 
of  the  kingdom,  in  default  of  their  appearance  the  creditors  may  issue 
a  sequestration  against  their  effects.  Can  we  say  that  a  practice  which 
the  legislature  of  the  United  Kingdom  has  recognized  and  extended  to 
other  cases  is  contrary  to  the  principles  of  justice? 

A  natural-born  subject  of  any  country,  quitting  that  country,  but 
leaving  property  under  the  protection  of  its  law,  even  during  his 
aljscnce,  owes  obedience  to  those  laws,  particularly  when  those  laws 
enforce  a  moral  oliiigation. 

'J'lu!  deceased,  iMifore  lie  left  his  native  countr}',  acknowledged,  under 


328  SCHIBSBY    V.    WESTENHOLZ.  [CHAP.    III. 

his  hand,  that  he  owed  the  debts ;  he  was  under  a  moral  obligation  to 
discharge  those  debts  as  soon  as  he  could.  It  must  be  taken  for 
granted,  from  there  being  no  plea  of  plene  admviistravit,  that  the 
deceased  had  the  means  of  paying  what  was  due  to  the  bankrupts. 
The  law  of  Scotland  has  only  enforced  the  performance  of  a  moral 
obligation,  by  making  his  executor  pay  what  he  admitted  was  due, 
with  interest  "during  the  time  that  he  deprived  his  creditors  of  their  just 
debts. 

The  reasoning  of  Lord  Ellenborough,  in  the  case  of  Buchanan  v. 
Rucker  (1  Campb.  63,  and  9  East,  192),  is  in  favor  of  these  decrees. 
Speaking  of  a  case  decided  by  Lord  Kenyon,  his  Lordship  says,  in 
that  case  the  defendant  had  property  in  the  island,  and  might  be  con- 
sidered as  virtually  present.  The  court  decided  against  the  validity 
of  the  attachment,  because  it  did  not  appear  that  the  party  attached 
ever  was  in  the  island,  or  had  any  property  in  it.  In  both  these 
respects  that  case  is  unlike  the  present.  In  the  case  of  Cavan  v. 
Stewart,  Lord  Ellenborough  says,  you  must  prove  him  summoned, 
or,  at  least,  that  he  was  once  in  the  island  of  Jamaica,  when  the 
attachment  issued. 

To  be  sure  if  attachments  issued  against  persons  who  never  were 
within  the  jurisdiction  of  the  court  issuing  them  could  be  supported 
and  enforced  in  the  country  in  which  the  person  attached  resided,  the 
legislature  of  any  country  might  authorize  their  courts  to  decide  on  the 
rights  of  parties  who  owed  no  allegiance  to  the  government  of  such 
country,  and  were  under  no  obligation  to  attend  its  courts,  or  obey  its 
laws.  We  confine  our  judgment  to  a  case  where  the  party  owed  alle- 
giance to  the  country  in  which  the  judgment  was  so  given  against  him, 
from  being  born  in  it,  and  by  the  laws  of  which  country  his  property 
was,  at  the  time  those  judgments  were  given,  protected.  The  debts 
were  contracted  in  the  country  in  which  the  judgments  were  given, 
whilst  the  debtor  resided  in  it. 


SCHIBSBY  V.    WESTENHOLZ. 

Queen's  Bench.     1870. 

[Reported  Law  Reports,  6  Queen's  Bench,  155.] 

Blackburn,  J.  This  was  an  action  on  a  judgment  of  a  French  tribu- 
nal given  against  the  defendants  for  default  of  appearance. 

The  pleas  to  the  action  were,  amongst  others,  a  plea  of  never  in- 
debted, and,  thirdly,  a  special  plea  asserting  that  the  defendants  were 
not  resident  or  domiciled  in  France,  or  in  any  way  subject  to  the  juris- 
diction of  the  French  court,  nor  did  they  appear ;  and  that  they  were 
not  summoned,  nor  had  any  notice  or  knowledge  of  the  pending  of  the 
proceedings,  or  any  opportunity  of  defending  themselves  therefrom. 
On  these  pleas  issue  was  joined. 


SECT.   II.]  SCHIBSBY   V.    WESTENHOLZ,  329 

On  the  trial  before  me  the  evidence  of  a  French  avocat  was  given, 
b}'  which  it  appeared  that  by  the  law  of  France  a  French  subject  may 
sue  a  foreigner,  though  not  resident  in  France,  and  that  for  this  pur- 
pose an  alien,  if  resident  in  France,  was  considered  by  the  French  law 
as  a  French  subject.^  The  mode  of  citation  in  such  a  case,  according 
to  the  French  law,  is  by  serving  the  summons  on  the  Procureur  Im- 
perial. If  the  foreign  defendant  thus  cited  does  not  within  one  month 
appear,  judgment  ma\-  be  given  against  him,  but  he  ma}'  still,  at  an}' 
time  within  two  months  after  judgment,  api)ear  and  be  heard  on  the 
merits.  After  that  lapse  of  time  the  judgment  is  final  and  conclusive. 
The  practice  of  the  imperial  government  is,  in  such  a  case,  to  forward 
the  summons  thus  served  to  the  consulate  of  the  country  where  the  de- 
fendant is  resident,  with  directions  to  intimate  the  summons,  if  prac- 
ticable, to  the  defendant ;  but  this,  as  was  explained  by  the  avocat,  is 
not  required  by  the  French  law,  but  is  simi)ly  done  by  the  imperial 
government  voluntarily  from  a  regard  to  fair  dealing. 

It  appeared  b}'  other  evidence  that  the  plaintiff  in  this  case  was  a 
Dane  resident  in  France.  The  defendants  were  also  Danes,  resident 
in  London  and  carrying  on  business  there.  A  written  contract  had 
been  made  between  the  plaintiff  and  defendants,  which  was  in  English, 
and  dated  in  London,  but  no  distinct  evidence  was  given  as  to  where 
it  was  signed.  We  think,  however,  that,  if  that  was  material,  the  fair 
intendment  from  the  evidence  was  that  it  was  made  in  London.  B}- 
this  contract  the  defendants  were  to  ship  in  Sweden  a  cargo  of  Swedish 
oats  free  on  board  a  French  or  Swedish  vessel  for  Caen,  in  France,  at 
a  certain  rate  for  all  oats  delivered  at  Caen.  Payment  was  to  be  made 
on  receipt  of  the  shipping  documents,  but  subject  to  correction  for 
excess  or  deficiency  according  to  what  might  turn  out  to  be  the  delivery 
at  Caen.  From  the  correspondence  it  appeared  that  the  plaintiff  as- 
serted, and  the  defendants  denied,  that  the  delivery  at  Caen  was  short 
of  the  quantity  for  which  the  plaintiff  had  paid,  and  that  the  plaintiff 
made  some  other  complaints  as  to  the  condition  of  the  cargo,  which 
were  denied  by  the  defendants.  The  plaintiff  very  plainly  told  the  de- 
fendants that  if  they  would  not  settle  the  claim  he  would  sue  them  in 
the  French  courts.  He  did  issue  process  in  tlie  manner  described,  and 
the  French  consulate  in  London  served  on  the  defendants  a  copy  of  the 
citation. 

The  following  admissions  were  then  made,  namely:  that  the  judg- 
ment was  regular  according  to  French  law;  that  it  was  given  in  favor 
of  the  plaintiff,  a  foreigner  domiciled  in  France,  against  the  defendants, 

1  See  Article  14  of  the  Code  Civil:  "Ketranger  meme  non  rdsidaut  en  Franco 
pourra  etre  cite  devaiit  les  triliunaux  franijais,  pour  I'execntion  des  obligations  par  lui 
contractdes  en  Fi-ance  avcc  un  fran(;ais  ;  il  jjourra  etre  traduit  devant  les  trihunaux  de 
PVanco  pour  les  obligations  par  lui  contractees  en  pays  etranger  en  vers  des  f'ran9ais." 

Codes  Annotes  de  Sirey  :  Code  Civil,  Art.  14,  Note  42  :  "  Un  Stranger  (pii  a  uno 
maison  de  commerce  etablie  ct  patente  en  France,  peut,  aussi  bien  qu'un  fran^ais, 
assigner  un  autre  etranger  devant  nn  trilninal  fran^ais." 


330  SCHIBSBY   V.    WESTENHOLZ.  [CHAP.   III. 

domiciled  in  England,  and  in  no  sense  French  subjects,  and  having  no 
property  in  France. 

I  then  ruled  tliat  I  could  not  enter  into  the  question  whether  the 
French  judgment  was  according  to  the  merits,  no  fraud  being  alleged 
or  shown. 

I  expressed  an  opinion  (which  I  have  since  changed)  that,  subject 
to  the  third  plea,  the  plaintiff  was  entitled  to  the  verdict,  but  reserved 
the  point. 

The  jury  found  that  the  defendants  had  notice  and  knowledge  of  the 
summons  and  the  pendency  of  the  proceedings  in  time  to  have  appeared 
and  defended  the  action  in  the  French  court.  I  then  directed  the  ver- 
dict for  the  plaintiff,  but  reserved  leave  to  enter  the  verdict  for  the 
defendants  on  these  facts  and  this  finding. 

No  question  was  raised  at  the  trial  as  to  the  sufficiency  of  the  pleas 
to  raise  the  defence.  If  there  had  been,  I  should  have  made  any 
amendment  necessary,  but,  in  fact,  we  are  of  opinion  that  none  was 
required. 

A  rule  was  accordingly  obtained  by  Sir  George  Honyman,  against 
which  cause  was  shown  in  the  last  term  and  in  the  sittings  after  it  be- 
fore my  Brothers  Mellor,  Lush,  Hannen,  and  myself.  During  the 
interval  between  the  obtaining  of  the  rule  and  the  showing  cause,  the 
case  of  Godard  v.  Gray,  L.  R.  6  Q.  B.  139,  on  which  we  have  just 
given  judgment,  was  argued  before  my  Brothers  Mellor,  Hannen,  and 
myself,  and  we  had  consequentl}'  occasion  to  consider  the  whole  subject 
of  the  law  of  England  as  to  enforcing  foreign  judgments. 

My  Brother  Lush,  who  was  not  a  party  to  the  discussions  in  Godard 
V.  Gray,  L.  R.  6  Q.  B.  139,  147,  has,  since  the  argument  in  the  present 
case,  perused  the  judgment  prepared  by  the  majority  in  Godard  v. 
Gray,  and  approves  of  it ;  and,  after  hearing  the  argument  in  the 
present  case,  we  are  all  of  opinion  that  the  rule  should  be  made 
absolute. 

It  is  unnecessary  to  repeat  again  what  we  have  already  said  in 
Godard  v.  Gray. 

We  think  that,  for  the  reasons  there  given,  the  true  principle  on 
which  the  judgments  of  foreign  tribunals  are  enforced  in  England  is 
that  stated  by  Parke,  B.,  in  Russell  v.  Smyth,  9  M.  &  W.  819,  and 
again  repeated  by  him  in  Williams  v.  Jones,  13  M.  &  W.  633,  that  the 
judgment  of  a  court  of  competent  jurisdiction  over  the  defendant  im- 
poses a  duty  or  obligation  on  the  defendant  to  pay  the  sum  for  which 
judgment  is  given,  which  the  courts  in  this  country  are  bound  to  en- 
force ;  and  consequently  that  anything  which  negatives  that  duty,  or 
forms  a  legal  excuse  for  not  performing  it,  is  a  defence  to  the  action. 

We  were  much  pressed  on  the  argument  with  the  fact  that  the  British 
legislature  has,  by  the  Common  Law  Procedure  Act,  1852  (15  &  16 
Vict.  c.  76),  ss.  18  &  19,  conferred  on  our  courts  a  power  of  summon- 
ing foreigners,  under  certain  circumstances,  to  appear,  and  in  case  they 
do  not,  giving  judgment  against  them  by  default.     It  was  this  consid- 


SECT.    II.]  SCHIBSBY   V.    WESTENIIOLZ.  33\^ 

elation  principally  which  induced  me  at  the  trial  to  entertain  the  opinion 
which  I  then  expressed  and  have  since  changed.  And  we  think  that  if 
the  principle  on  which  foreign  judgments  were  enforced  was  that  which 
is  loosely  called  "  comity,"  we  could  hardly  decline  to  enforce  a  forei<,ni 
judgment  given  in  France  against  a  resident  in  Great  Britain  uncfer 
circumstances  hardly,  if  at  all,  distinguishable  from  those  under  which 
we,  mutatis  mutandis,  might  give  judgment  against  a  resident  in 
France  ;  but  it  is  quite  different  if  the  principle  be  that  which  we  have 
just  laid  down. 

Should  a  foreigner  be  sued  under  the  provisions  of  the  statute  re- 
ferred to,  and  then  come  to  the  courts  of  this  country  and  desire  to  be 
discharged,  the  only  question  which  our  courts  could  entertain  would 
be  whether  the  acts  of  the  British  legislature,  rightly  construed,  gave 
us  jurisdiction  over  this  foreigner,  for  we  must  obey  them.  Bu^t  if, 
judgment  being  given  against  him  in  our  courts,  an  action  were  brought 
upon  it  in  the  courts  of  the  United  States  (where  the  law  as  to  the 
enforcing  foreign  judgments  is  the  same  as  our  own),  a  further  question 
would  be  open,  viz.,  not  only  whether  the  British  legislature  had  given 
the  English  courts  jurisdiction  over  the  defendant,  but  whether  he' was 
under  any  obligation  which  the  American  courts  could  recognize  to 
submit  to  the  jurisdiction  thus  created.  This  is  precisely  the  question 
which  we  have  now  to  determine  with  regard  to  a  jurisdiction  assumed 
by  the  French  jurisprudence  over  foreigners. 

Again,  it  was  argued  before  us  that  foreign  judgments  obtained  by 
default,  where  the  citation  was  (as  in  the  present  case)  by  an  artificial 
mode  prescribed  by  the  laws  of  the  country  in  which  the  judgment  was 
given,  were  not  enforceable  in  this  country  because  such  a  mode  of 
citation  was  contrary  to  natural  justice,  and  if  this  were  so,  doubtless 
the  finding  of  the  jury  in  the  present  case  would  remove  that  objection. 
But  though  it  appears  by  the  report  of  Buchanan  v.  Rucker,  1  Camp. 
63,  that  Lord  Ellenborough  in  the  hurry  of  Nisi  Prius  at  first  used  ex- 
pressions to  this  effect,  yet  when  the  case  came  before  him  in  banco  in 
Buchanan  o.  Rucker,  9  East,  192,  he  entirely  abandoned  what  (with 
all  deference  to  so  great  an  authority)  we  cannot  regard  as  more  than 
declamation,  and  rested  his  judgment  on  the  ground  that  laws  passed 
by  our  country  were  not  obligatory  on  foreigners  not  subject  to  their 
jurisdiction.  "  Can,"  he  said,  ''  the  Island  of  Tobago  pass  a  law  to 
bind  the  rights  of  the  whole  world?  " 

The  question  we  have  now  to  answer  is,  Can  the  empire  of  France 
iniss  a  law  to  bind  the  whole  world?  ^Ve  admit,  with  perfect  can- 
dor, that  in  tiie  supposed  cave  of  a  judgment,  obtained  in  this  country 
against  a  foreigner  under  the  provisions  of  the  Common  Law  Pro- 
cedure Act,  being  sued  on  in  a  court  of  the  United  States,  the  question 
for  the  court  of  the  United  States  would  be.  Can  the  Island  of  Great 
Britain  pass  a  law  to  bind  the  whole  world  ?  We  tliink  in  each  case 
tlie  answer  should  be,  No,  but  every  country  can  pass  laws  to  bind  a 
great  many  persons;  and  therefore  fhc  furt.iicr  question  has  to  be  de- 


332  SCHIBSBY    V.   WESTENHOLZ.  [CHAP.   Ill, 

termined,  whether  the  defendant  in  the  particular  suit  was  such  a  per- 
son as  to  be  bound  by  the  judgment  which  it  is  sought  to  enforce. 

Now  on  this  we  think  some  things  are  quite  clear  on  principle.  If  the 
defendants  had  been  at  the  time  of  the  judgment  subjects  of  the  coun- 
try whose  judgment  is  sought  to  be  enforced  against  them,  we  think 
that  its  laws  would  have  bound  them.  Again,  if  the  defendants  had 
been  at  the  time  when  the  suit  was  commenced  resident  in  the  country, 
so  as  to  have  the  benefit  of  its  laws  protecting  them,  or,  as  it  is  some- 
times expressed,  owing  temporary  allegiance  to  that  country,  we  think 
that  its  laws  would  have  bound  them. 

If  at  the  time  when  the  obligation  was  contracted  the  defendants 
were  within  the  foreign  country,  but  left  it  before  the  suit  was  insti- 
tuted, we  should  be  inclined  to  think  the  laws  of  that  country  bound 
them  ;  though  before  finally  deciding  this  we  should  like  to  hear  the 
question  argued.     But  every  one  of  those  suppositions  is  negatived  in 

the  present  case. 

Again,  we  think  it  clear,  upon  principle,  that  if  a  person  selected, 
as  pfaintiff,  the  tribunal  of  a  foreign  country  as  the  one  in  which  he 
would  sue,  he  could  not  afterwards  say  that  the  judgment  of  that 
tribunal  was  not  binding  upon  him. 

In  the  case  of  General  Steam  Navigation  Company  v.  Guillou,  11 
M.  &  W.  877,  894,  on  a  demurrer  to  a  plea,  Parke,  B.,  in  delivering 
the  considered  judgment  of  the  Court  of  Exchequer,  then  consisting  of 
Lord  Abinger,  C.B.,  Parke,  Alderson,  and  Gurney,  BB.,  thus  expresses 
himself:  ''The  substance  of  the  plea  is  that  the  cause  of  action  has 
been  already  adjudicated  upon,  in  a  competent  court,  against  the  plain- 
tiffs, and  that  the  decision  is  binding  upon  them,  and  that  they  ought 
not  to  be  permitted  again  to  litigate  the  same  question.  Such  a  plea 
ought  to  have  had  a  proper  commencement  and  conclusion.  It  be- 
comes, therefore,  unnecessary  to  give  any  opinion  whether  the  pleas 
are  bad  in  substance  ;  but  it  is  not  to  be  understood  that  we  feel  much 
doubt  on  that  question.  They  do  not  state  that  the  plaintiffs  were 
French  subjects,  or  resident,  or  even  present  in  France  when  the  suit 
began,  so  as  to  be  bound  by  reason  of  allegiance  or  temporary  pres- 
ence by  the  decision  of  a  French  court,  and  they  did  not  select  the 
tribunal  and  sue  as  plaintiffs,  in  any  of  which  cases  the  determination 
might  have  possibly  bound  them.  They  were  mere  strangers,  who  put 
foi-ward  the  negligence  of  the  defendant  as  an  answer,  in  an  adverse 
suit  in  a  foreign  country,  whose  laws  they  were  under  no  obligation 

to  obey." 

It  will  be  seen  from  this  that  those  very  learned  judges,  besides  ex- 
pressing an  opinion  conformable  to  ours,  also  expressed  one  to  the 
effect  that  the  plaintiffs  in  that  suit  did  not  put  themselves  under  an 
obligation  to  obey  the  foreign  judgment,  merely  by  appearing  to  defend 
themselves  against  it.  On  the  other  hand,  in  Simpson  v.  Fogo,  1  John. 
&  H.  18,  29  L.  J.  (Ch.)  657,  1  Hem.  &  M.  195,  32  L.  J.  (Ch.)  249, 
where  the  mortgagees  of  an  English  ship  had  come  into  the  courts  of 


SECT.    II.]  SCHIBSBY   V.   WESTENHOLZ.  333 

Louisiana,  to  endeavor  to  prevent  the  sale  of  their  ship  seized  under 
an  execution  against  the  mortgagors,  and  the  courts  of  Louisiana  de- 
cided against  them,  the  Vice-Chancellor  and  the  very  learned  counsel 
who  argued  in  the  case  seem  all  to  have  taken  it  for  granted  that  the 
decision  of  the  court  in  Louisiana  would  have  bound  the  mortgagees 
had  it  not  been  in  contemptuous  disregard  of  English  law.  The  case 
of  General  Steam  Navigation  Company  v.  Guillou,  11  M.  &  W.  877, 
was  not  referred  to,  and  therefore  cannot  be  considered  as  dissented 
from  ;  but  it  seems  clear  that  they  did  not  agree  in  the  latter  part  of 
the  opinion  there  expressed. 

We  think  it  better  to  leave  this  question  open,  and  to  express  no 
opinion  as  to  the  effect  of  the  appearance  of  a  defendant,  where  it  is 
so  far  not  voluntary  that  he  only  comes  in  to  try  to  save  some  prop- 
erty in  the  hands  of  the  foreign  tribunal.  But  we  must  observe  that 
the  decision  in  De  Cosse  Brissac  v.  Rathbone,  6  H.  &  N.  301,  30  L.  J. 
(Ex.)  238,  is  an  authority  that  where  the  defendant  voluntarily  appears 
and  takes  the  chance  of  a  judgment  in  his  favor  he  is  bound. 

In  Douglas  v.  Forrest,  4  Bing.  703,  the  court,  deciding  in  favor  of 
the  party  suing  on  a  Scotch  judgment,  say :  "  We  confine  our  judg- 
ment to  a  case  where  the  party  owed  allegiance  to  the  country  in  which 
the  judgment  was  so  given  against  him,  from  being  born  in  it,  and  by 
the  laws  of  which  country  his  property  was,  at  the  time  those  judgments 
were  given,  protected.  The  debts  were  contracted  in  the  country 
in  which  the  judgments  were  given,  whilst  the  debtor  resided  in  it." 
Those  circumstances  are  all  negatived  here.  We  should,  however, 
point  out  that,  whilst  we  think  that  there  may  be  other  grounds  for 
holding  a  person  bound  by  the  judgment  of  the  tribunal  of  a  foreign 
country  than  those  enumerated  in  Douglas  v.  Forrest,  we  doubt  very 
much  whether  the  possession  of  property,  locally  situated  in  that 
country  and  protected  by  its  laws,  does  afford  such  a  ground.  It 
should  rather  seem  that,  whilst  every  tribunal  may  very  properlv  exe- 
cute process  against  the  property  within  its  jurisdiction,  the  existence 
of  such  property,  which  may  be  very  small,  affords  no  sufficient  ground 
for  imposing  on  the  foreign  owner  of  that  property  a  duty  or  obligation 
to  fulfil  the  judgment.  But  it  is  unnecessary  to  decide  this,  as  the  de- 
fendants had  in  this  case  no  property  in  France.  As  to  this,  see  Lon- 
don and  North  Western  Railway  Company  v.  Lindsay,  3  Macq.  99. 

We  think,  and  this  is  all  that  we  need  decide,  that  there  existed 
nothing  in  the  present  case  imposing  on  the  defendants  any  duty  to 
obey  the  judgment  of  a  Freiicli  tribunal. 

We  think,  therefore,  that  the  rule  must  be  made  absolute. 

Jiule  absolute.^ 

1  yfcc.  McEwenv.  Zimmer,  38  Mich.  765;  Scott  v.  Noble,  72  Pa.  115  ;  Tillinfrhast 
V.  Boston,  &c.,  Co.,  39  S.  C.  484,  18  S.  E.  120.  See  Comber  v.  Leyland,  1898]  A.  C. 
524.  —  Ed. 


334      SIRDAK    GUEDYAL   SINGH    V.    RAJAH   OF   FARIDKOTE.     [CHAP.    III. 


SIRDAR  GURDYAL  SINGH  v.  THE  RAJAH  OF  FARIDKOTE. 

Judicial  Committee  of  the  Privy  Council.     1894. 

[Reported  [1894]  Appeal  Cases,  670.] 

The  judgment  of  their  lordships  was  delivered  by  the 

Earl  of  Selborne.  The  respondent,  the  Rajah  of  Faridkote,  ob- 
tained in  the  civil  court  of  that  native  state,  in  1879  and  1880,  two 
ex  parte  judgments,  in  two  suits  instituted  b}'  him  against  the  appel- 
lant, for  sums  amounting  together  to  Rs.  76,474  11a.  3p.,  and  costs. 
For  all  the  purposes  of  the  question  to  be  now  decided,  those  two  suits 
may  be  treated  as  one  ;  the  appeals  to  Her  Majesty  in  council  having 
been  consolidated.  Two  actions,  founded  on  these  judgments,  were 
brought  b}'  the  rajah  against  the  appellant  in  the  court  of  the  assistant 
commissioner  of  Lahore,  and  were  dismissed  by  that  court,  on  the 
ground  that  the  judgments  were  pronounced  by  the  Faridkote  court, 
without  jurisdiction  as  against  the  appellant.  On  appeal  to  the  addi- 
tional commissioner  of  Lahore,  the  judgments  of  the  first  court  were 
upheld.  The  rajah  then  appealed  to  the  chief  court  of  the  Punjaub, 
which  differed  from  both  those  tribunals,  and  upheld  the  jurisdiction  of 
the  Faridkote  court. 

Faridkote  is  a  native  state,  the  rajah  of  which  has  been  recognized 
b}'  Her  Majesty  as  having  an  independent  civil,  criminal,  and  fiscal 
jurisdiction.  The  judgments  of  its  courts  are,  and  ought  to  be,  regarded 
in  Her  Majesty's  courts  of  British  India  as  foreign  judgments.  The 
additional  commissioner  of  Lahore  thought  that  no  action  could  be 
brought  in  Her  Majesty's  courts  upon  a  judgment  of  a  native  state; 
but  in  this  opinion  their  lordships  do  not  concur. 

The  appellant  was  for  five  3'ears,  beginning  in  1869,  in  the  service  of 
the  late  Rajah  of  Faridkote  as  his  treasurer ;  and  the  causes  of  action, 
on  which  the  suits  in  the  Faridkote  court  were  brought,  arose  within 
that  state,  and  out  of  that  employment  of  the  appellant  by  the  late 
rajah.  The  claim  made  in  each  of  the  suits  was  merely  personal,  for 
money  alleged  to  be  due,  or  recoverable  in  the  nature  of  damages,  from 
the  appellant.  It  is  immaterial,  in  their  lordships'  view,  to  the  question 
of  jurisdiction  (which  is  the  only  question  to  be  now  decided)  whether 
the  case,  as  stated,  ought  to  be  regarded  as  one  of  contract  or  of  tort. 

The  appellant  left  the  late  rajah's  service,  and  ceased  to  reside  within 
his  territorial  jurisdiction,  in  1874.  He  was  from  that  time  generally 
resident  in  another  independent  native  state,  that  of  Jhind,  of  which  he 
was  a  native  subject  and  in  which  he  was  domiciled  ;  and  he  never  re- 
turned to  Faridkote  after  he  left  it  in  1874.  He  was  in  Jhind  when  he 
was  served  with  certain  processes  of  the  Faridkote  court,  as  to  which 
it  is  unnecessary  for  their  lordships  to  determine  what  the  effect  would 
have  been  if  there  had  been  jurisdiction.  He  disregarded  them,  and 
never  appeared  in  either  of  the  suits  instituted  by  the  rajah,  or  other- 


SECT.    II.]       SIRDAR   GURDYAL   SINGH    V.    RAJAH    OF   FARIDKOTE.      335 

wise  submitted  liimself  to  that  jurisdiction.  He  was  under  no  obliga- 
tion to  do  so,  by  reason  of  the  notice  of  the  suits  which  he  thus  received 
or  otlierwise,  unless  that  court  had  lawful  jurisdiction  over  him. 

Under  these  circumstances  there  was,  in  tiieir  lordships'  opinion, 
nothing  to  take  this  case  out  of  the  general  rule,  that  the  plaintiff  must 
sue  in  the  court  to  which  the  defendant  is  subject  at  the  time  of  suit 
(actor  sequitur  forum  ret),  which  is  rightly  stated  by  Sir  Robert  Pliil- 
limore  (International  Law,  vol.  iv.,  s.  Sd\)  to  "lie  at  the  root  of 
all  international,  and  of  most  domestic,  jurisprudence  on  this  matter." 
All  jurisdiction  is  properly  territorial,  and  extra  territorium  jus  diccnti, 
imjnine  nan  2)aretur.  Territorial  jurisdiction  attaches  (with  special 
exceptions)  upon  all  persons  either  permanently  or  temporarily  resident 
within  the  territory  while  they  are  within  it ;  but  it  does  not  follow 
them  after  they  have  withdrawn  from  it,  and  when  they  are  living  in 
another  independent  country.  It  exists  always  as  to  land  within  the 
territory,  and  it  may  be  exercised  over  movables  within  the  territory  ; 
and,  in  questions  of  status  or  succession  governed  by  domicile,  it  may 
exist  as  to  persons  domiciled,  or  who  when  living  were  domiciled, 
within  the  territory.  As  between  different  provinces  under  one  sover- 
eignty (e.  (/.,  under  the  Roman  Empire)  the  legislation  of  the  sovereign 
may  distribute  and  regulate  jurisdiction  ;  but  no  territorial  legislation 
can  give  jurisdiction  which  any  foreign  court  ought  to  recognize  against 
foreigners,  who  owe  no  allegiance  or  obedience  to  the  power  which  so 
legislates. 

In  a  personal  action,  to  which  none  of  these  causes  of  jurisdiction 
apply,  a  decree  pronounced  in  absentem  by  a  foreign  court,  to  the  juris- 
diction of  which  the  defendant  has  not  in  any  way  submitted  himself, 
is  by  international  law  an  absolute  nullity.  He  is  under  no  obligation 
of  any  kind  to  obey  it;  and  it  must  be  regarded  as  a  mere  nullity  bv 
the  courts  of  every  nation  except  (when  authorized  l)y  special  local 
legislation)  in  the  country  of  the  forum  by  which  it  was  pronounced. 

These  are  doctrines  laid  down  by  all  the  leading  authorities  on  inter- 
national law  ;  among  others,  by  Story  (Conflict  of  Laws,  2d  ed.,  sects. 
-546,  549,  553,  554,  556,  586),  and  by  Chancellor  Kent  (Commentaries, 
vol.  i.,  p.  284,  note  c,  10th  ed.),  and  no  exception  is  made  to  them,  in 
favor  of  the  exercise  of  jurisdiction  against  a  defendant  not  otherwise 
subject  to  it,  by  the  courts  of  the  country  in  which  the  cause  of  action 
arose,  or  (in  cases  of  contract)  by  the  courts  of  the  locus  solutionis. 
In  those  cases,  as  well  as  all  others,  when  the  action  is  personal,  the 
courts  of  the  country  in  which  a  defendant  resides  have  power,  and 
they  ought  to  be  resorted  to,  to  do  justice. 

The  conclusion  of  the  learned  judges  in  the  chief  court  of  the  Pun- 
jaub  is  expressed  in  the  following  sentence  of  the  judgment  delivered 
by  Sir  Meredyth  Plowden  in  the  first  of  the  two  actions  :  — 

"  On  the  whole,  I  think  it  may  be  said,  that  a  State  assuming  to  exer- 
cise jurisdiction  over  an  absent  foreigner,  in  respect  of  an  obligation 
arising  out  of  a  contract  n)ade  l)y  the  foreigner  while  resident  in  the 


336      SIKDAR   GUEDYAL   SINGH    V.    RAJAH   OF    FARIDKOTE.      [CHAP.  III. 

state  and  to  be  fulfilled  there,  is  not  acting  in  contravention  of  the 
general  practice  or  the  principles  of  international  law,  so  that  its  judg- 
ment should  not  be  binding  merely  on  the  ground  of  the  absence  of  the 
defendant." 

If  this  doctrine  were  accepted,  its  operation,  in  the  enlargement  of 
territorial  jurisdiction,  would  be  very  important.  No  authority,  of  an}- 
relevancy,  was  cited  at  their  lordships'  bar  to  support  it,  except  Becquet 
V.  Macarthy,  2  B.  &  Ad.  951,  and  a  passage  from  the  judgment  deliv- 
ered by  Blackburn,  J.,  in  Schibsby  v.  Westenholz. 

Of  Becquet  v.  Macarthy,  it  was  said  by  great  authorit}'  in  Don  v. 
Lippman,  5  CI.  &  F.  1,  that  it  "  had  been  supposed  to  go  to  the  verge 
of  the  law ;  "  and  it  was  explained  (as  their  lordships  think,  cor- 
rectly) on  the  ground  that  "  the  defendant  held  a  public  office  in  the 
ver}'^  colony  in  which  he  was  originally  sued."  He  still  held  that  office 
at  the  time  when  he  was  sued ;  the  cause  of  action  arose  out  of,  or  was 
connected  with  it ;  and,  though  he  was  in  fact  temporarily  absent,  he 
might,  as  the  holder  of  such  an  office,  be  regarded  as  constructively 
present  in  the  place  where  his  duties  required  his  presence,  and  there- 
fore amenable  to  the  colonial  jurisdiction.  If  the  case  could  not  be 
distinguished  on  that  ground  from  that  of  any  absent  foreigner  who,  at 
some  previous  time,  might  have  been  in  the  employment  of  a  colonial 
government,  it  would,  in  their  lordships'  opinion,  have  been  wrongl}^ 
decided;  and  it  is  evident  that  Frj',  L. J.,  in  Rousillon  v.  Rousillon, 
14  Ch.  D.  351,  took  that  view. 

The  words  of  Blackburn,  J.'s,  judgment,  in  Schibsby  v.  Westenholz, 
which  were  relied  upon,  are  these  :  — 

"  If,  at  the  time  when  the  obligation  was  contracted,  the  defendants 
were  within  the  foreign  couutr}-,  but  left  it  before  the  suit  was  insti- 
tuted, we  should  be  inclined  to  think  the  laws  of  that  countr}'  bound 
them ;  though,  before  finally  deciding  this,  we  should  hke  to  hear  the 
question  argued." 

Upon  this  sentence  it  is  to  be  observed,  that  beyond  doubt  in  such 
a  case  the  laws  of  the  countr}-  in  which  an  obligation  was  contracted 
might  bind  the  parties,  so  far  as  the  interpretation  and  effect  of  the 
obligation  was  concerned,  in  whatever  forum  the  remed}'  might  be 
sought.  The  learned  judge  had  not  to  consider  whether  it  was  a  legiti- 
mate consequence  from  this,  that  the}-  would  be  bound  to  submit,  on 
the  footing  of  contract  or  otherwise,  to  anv  assumption  of  jurisdiction 
over  them  in  respect  of  such  a  contract,  b}-  the  tribunals  of  the  country 
in  which  the  contract  was  made,  at  any  subsequent  time,  although  they 
might  be  foreigners  resident  abroad.  That  question  was  not  argued, 
and  did  not  arise,  in  the  case  then  before  the  court ;  and,  if  this  was 
what  Blackburn,  J.,  meant,  their  lordships  could  not  regard  any  mere 
inclination  of  opinion,  on  a  question  of  such  large  and  general  impor- 
tance, on  which  the  judges  themselves  would  have  desired  to  hear  argu- 
ment if  it  had  required  decision,  as  entitled  to  the  same  weight  which 
might  be  due  to  a  considered  judgment  of  the  same  authorit}'.     Upon 


SECT.    II.]  HENDERSON    V.    STANIFORD.  337 

the  question  itself,  which  was  determined  in  Schibsby  v.  Westenholz, 
Blackburn,  J.,  had  at  the  trial  formed  a  different  opinion  from  that  at 
which  he  ultimately  arrived;  and  their  lordships  do  not  doubt  that,  if 
he  had  heard  argument  upon  the  question,  whether  an  obligation  to 
accept  the  forum  loci  contractus,  as  having,  by  reason  of  the  contract, 
a  conventional  jurisdiction  against  the  parties  in  a  suit  founded  upon 
that  contract  for  all  future  time,  wherever  they  might  be  domiciled  or 
resident,  was  generallv  to  be  implied,  he  would  have  come  (as  their 
lordships  do)  to  the  conclusion,  that  such  obligation,  unless  expressed, 
could  not  be  implied. 

Their  lordships  will  therefore  humbly  advise  Her  Majesty  to  reverse 
the  decrees  of  the  chief  court  of  the  Punjaub,  and  to  restore  those  of 
the  additional  commissioner  of  Lahore.  The  respondent  will  pay  the 
costs  of  the  appeals  to  the  courts  below  and  of  these  appeals. 


HENDERSON    v.   STANIFORD. 
Supreme  Judicial  Court  of  Massachusetts.     1870. 

[Reported  105  Massachusetts,  504.] 

Contract  on  a  promissory  note  dated  October  20,  1864,  made  by 
the  defendant  payable  in  one  month  to  the  order  of  the  plaintiff,  who 
was  described  in  the  writ  (which  was  dated  January  20,  1869),  as  of 
Crescent  Citv  in  the  countv  of  Del  Norte  and  State  of  California.  The 
answer  put  the  plaintiff  to  his  proof  concerning  the  making  of  the  note, 
and  set  up  "that  if  the  plaintiff  shall  show  that  the  defendant  made 
the  note,  then  the  defendant  answers  that  there  is  a  judgment  upon 
said  note  in  the  county  of  Del  Norte  and  State  of  California,  against 
the  defendant  and  in  favor  of  the  plaintiff,  and  the  same  has  never 
been  reversed,  reviewed,  or  annulled,  but  is  still  in  force  against  the 
defendant  in  said  State,  where  said  contract  was  made,  and  where  said 
defendant  for  a  long  time,  to  wit,  from  the  year  1849  until  some  time 
in  the  vear  1867,  had  his  residence,  —  that  he  came  to  the  State  of 
Massachusetts  some  time  in  the  year  1867,  but  with  the  intention  in  a 
short  time  of  returning  to  the  State  of  California." 

The  parties  stated  the  case,  referring  to  the  pleadings,  admitting  the 
making  of  the  note  bv  the  defendant,  and  continuing  as  follows :  "  In 
the  year  1849  the  defendant  went  from  Massachusetts  to  California, 
and  voted  and  was  taxed  there  until  he  returned  to  Massachusetts  in 
the  year  1867.  When  he  came  to  Massachusetts  it  was  his  intention 
to  return  to  California,  but  in  consequence  of  domestic  afllietion  he 
has  remained  here.  While  in  California  he  had  his  residence  in  the 
township  of  Crescent,  otlierwiso  known  .-is  Crescent  City.  In  June, 
1868,  the  plaintiff  commenced  an  action  before  :i  justice's  court,  against 


338  DARRAH    V.    WATSON.  [CHAP.    III. 

this  defendant,  in  Crescent  township  and  county  of  Del  Norte,  where 
said  defendant  had  resided,  upon  the  note  in  this  suit,  notice  of  the 
pendency  of  said  action  being  duly  given  by  publication  ;  and  the  same 
was  prosecuted  to  final  judgment  upon  default,  the  defendant  not 
appearing  personally  or  by  counsel.  Said  judgment  has  never  been 
arrested,  reversed,  reviewed,  or  annulled,  but  is  now  a  valid  and 
unsatisfied  judgment  in  full  force  in  the  State  of  California.  Upon 
the  above  facts  it  is  agreed  that  the  court  may  render  such  judgment 
as  is  warranted  by  the  pleadings."  The  superior  court  gave  judgment 
for  the  defendant,  and  the  plaintiff  appealed. 

Wells,  J.  The  defendant  was  not  in  California  when  the  action 
was  commenced  against  him  there ;  nor  at  any  time  during  its  pend- 
ency. No  service  of  process  or  notice  was  ever  made  upon  him 
personally.  He  did  not  appear  by  counsel,  or  otherwise,  nor  assent 
to  the  judgment,  which  was  rendered  upon  his  default  of  appearance. 
But  he  had  been,  for  a  long  time  before  that,  a  citizen  of  California ; 
the  contract  was  made  there ;  and  that  continued  to  be  his  legal 
domicile  when  the  judgment  was  rendered.  He  was,  therefore,  upon 
principles  of  international  right,  subject  to  the  laws,  and  to  the  juris- 
diction of  the  courts  of  that  State.  Story  Confl.  Laws,  §§  546,  548  ; 
Hall  V.  Williams,  6  Pick.  232,  240  ;  Gillespie  v.  Commercial  Insurance 
Co.,  12  Gray,  201.  In  Massachusetts,  jurisdiction  is  assumed  to  be 
exercised  in  suits  against  parties  who  have  been  inhabitants  of  the 
State,  although  not  so  at  the  time  of  action  brought.  Gen.  Sts.  c.  126, 
§  1  ;  Morrison  v.  Underwood,  5  Cush.  52  ;  Orcutt  v.  Ranney,  10  Cusb. 
183.  We  must  presume  that  the  exercise  of  jurisdiction,  in  the  suit 
in  question,  was  in  accordance  with  the  laws  of  California.  The  agreed 
facts  state  that  the  judgment  "  is  now  a  valid  and  unsatisfied  judgment, 
in  full  force  in  the  State  of  California."  ^ 


DARRAH   y.   WATSON. 

Supreme  Court  of  Iowa.     1873. 

[Reported  36  Iowa,  116.] 

Miller,  J.^  The  judgment  record,  on  which  this  action  is  brought, 
shows  that  the  action  was  commenced  in  the  county  court  of  Monon- 
galia County,  Virginia  (now  West  Virginia),  by  the  issuance  of  a  sum- 
mons, returnable  on  the  first  Monday  of  June,  1859.  The  sheriffs 
return  on  the  summons  shows  a  a  personal  service  thereof  on  the  6th 
day  of  June,  1859.   .  .   . 

1  The  remainder  of  the  opinion,  in  which  the  effect  of  the  judgment  is  discussed, 
is  here  omitted. 

Ace.  Hunt  V.  Hunt,  72  N.  Y.  217 ;  Frothingham  v.  Barnes,  9  R.  I.  474  (semble).— 
Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.    II.]  DARRAH   V.   WATSON.  330 

On  the  trial  the  defendant  Watson  was  sworn  as  a  witness,  and  tes- 
tified that  during  the  year  1859,  he  resided  in  Greene  County,  Pennsyl- 
vania, and  had  so  resided  there  for  about  three  or  four  years  prior  to 
June,  1859,  and  never  afterward  resided  in  the  State  of  Virginia  ;  that 
during  the  month  of  June,  1859,  he  went  from  his  residence  in  Penn- 
sylvania into  Monongalia  County,  Virginia,  temporarily  and  on  business  ; 
was  there  only  two  or  three  hours  and  returned  again  to  Greene  County, 
Pennsylvania,  which  latter  county  adjoins  Monongalia  County,  Vir- 
ginia ;  that  while  thus  in  the  latter  county  he  was  served  with  some 
kind  of  paper  or  process,  which  was  the  only  paper  or  process  ever 
served  on  him  in  said  county  ;  that  he  paid  no  attention  to  the  matter, 
never  appeared  in  the  action,  made  no  defence  and  authorized  no  one 
to  appear  for  him.  Whereupon  defendant's  counsel  asked  the  court  to 
instruct  the  jury  in  substance,  that  if  they  found  that  the  defendant, 
at  the  time  of  the  rendition  of  the  judgment  in  Virginia,  was  not  a 
resident  of  or  domiciled  in  said  State,  but  was  a  resident  of  and  domi- 
ciled in  the  State  of  Pennsylvania  ;  that  defendant,  when  the  summons 
or  original  process  was  served  upon  him,  was  in  the  State  of  Virginia 
only  for  a  few  hours  temporarily  and  on  business  ;  that  defendant  never 
afterward  resided  in  said  State;  that  defendant  did  not  appear  to  the 
action  or  authorize  any  one  to  appear  for  him,  then  the  county  court 
of  iNIonongalia  County,  Virginia,  did  not,  by  virtue  of  such  service  or 
bv  any  proceedings  in  said  action,  acquire  jurisdiction  of  the  person  of 
defendant  to  render  a  personal  judgment  as  would  be  binding  against 
him  in  this  State. 

This  instruction  was  refused,  and  this  ruling  is  assigned  as  error. 
We  have  before  said  that  the  insufficiency  of  the  service  of  the  sum- 
mons would  not  have  the  effect  to  render  the  judgment  void  as  for 
want  of  jurisdiction.  But  it  is  insisted  by  appellant's  counsel  that 
"  even  admitting  that  the  summons  had  been  served  in  time  and  per- 
sonally on  defendant  in  Virginia,"  the  court  did  not  acquire  juris- 
diction of  the  defendant  who  was  a  resident  of  another  State,  and 
never  afterward  was  a  resident  of  Virginia,  but  was  merely  temporarily 
therein  when  he  was  served  with  original  process  in  the  action.  The 
position  assumed  by  counsel  is,  that  the  courts  of  Virginia  could  not 
acquire  jurisdiction  of  the  person  of  a  citizen  and  resident  of  Pennsyl- 
vania by  the  service  of  original  process  upon  him  while  temporarily  in 
the  former  State  on  ])usincss. 

The  doctrine  is  well  settled  that  no  State  can  by  its  judgments  ren- 
dered in  its  courts  bind  personally  a  defendant  who  is  not  within  its 
jurisdiction,  and  on  whom  no  notice  has  been  served.  Melhop  & 
Kingman  v.  Doane  &  Co.,  31  Iowa,  397,  and  cases  cited.  And  that 
to  entitle  a  judgment  rendered  in  one  State  to  tlie  full  faitii  and  credit 
mentioned  in  the  Constitution  and  laws  of  the  United  States  the  court 
must  have  had  jurisdiction  not  only  of  the  subject-matter,  but  of  the 
person  of  the  defendant.  Ibid.  Hut  is  it  true  that  the  courts  of  one 
^tate  cannot  acquire  jurisdiction  of  the  person  of  a  citizen  and  resi- 


340  ST.    CLAIR   V.    COX.  [CHAP.   III. 

dent  of  a  sister  State  by  the  service  of  original  process  upon  such 
citizen  within  the  jurisdiction  of  the  former  State?  We  think  it  is  not. 
In  the  only  case  cited  by  appellant's  counsel,  Bissell  v.  Briggs,  9  Mass. 
462,  Chief  Justice  Parsons,  on  page  470,  says :  "  Now,  an  inhabitant 
of  one  State  may,  without  changing  his  domicile,  go  into  another  ;  he 
may  there  contract  a  debt  or  commit  a  tort,  and  while  there  he  owes  a 
temporary  allegiance  to  that  State,  is  bound  by  its  laws,  and  is  amen- 
able to  its  courts."  We  have  found  no  case  holding  a  contrary  doctrine 
to  this. 

Applying  this  doctrine  to  the  case  before  us,  we  hold  that  the  county 
court  of  Virginia  did  acquire  jurisdiction  of  the  person  of  the  defend- 
ant by  the  service  of  the  summons  upon  him  while  temporarily  within 
its  local  jurisdiction,  and  that  its  judgment  is  entitled  to  the  same  faith 
and  credit  in  this  State  as  it  was  entitled  by  the  laws  of  the  State  where 
rendered.  The  court  below  did  not  err,  therefore,  in  refusing  the  in- 
struction asked,  and  its  judgment  is  Affirmed.'^ 


ST.    CLAIR  V.    COX. 

Supreme  Court  of  the  United  States.     1882. 
[Reported  106  United  States,  350.] 

Field,  J.  This  action  was  brought  by  the  plaintiff  in  the  court 
below,  to  recover  the  amount  due  on  two  promissory  notes  of  the 
defendants,  each  for  the  sum  of  S2,500,  bearing  date  on  the  2d  of 
August,  1877,  and  payable  five  months  after  date,  to  the  order  of  the 
Winthrop  Mining  Company,  at  the  German  National  Bank,  in  Chi- 
cago, with  interest  at  the  rate  of  seven  per  cent  per  annum. 

To  the  action  the  defendants  set  up  various  defences,  and,  among 
others,  substantially  these:  That  the  consideration  of  the  notes  had 
failed;  that  they  were  given,  with  two  others  of  like  tenor  and 
amount,  to  the  Winthrop  Mining  Company,  a  corporation  created 
under  the  laws  of  Illinois,  in  part  payment  for  ore  and  other  prop- 
erty sold  to  the  defendants  upon  a  representation  as  to  its  quantity, 
which  proved  to  be  incorrect;  that  only  a  portion  of  the  quantity 
sold  was  ever  delivered,  and  that  the  value  of  the  deficiency  exceeded 
the  amount  of  the  notes  in  suit;  that  at  the  commencement  of  the 
action,  and  before  the  transfer  of  the  notes  to  the  plaintiff,  the 
Winthrop  Mining  Company  was  indebted  to  the  defendants  in  a 
large  sum,  viz.  $10,000,  upon  a  judgment  recovered  by  them  in  the 
Circuit  Court  of  Marquette  County,  in  the  State  of  Michigan,  and 
that  the  notes  were  transferred  to  him  after  their  maturity  and 
dishonor,  and  after  he  had  notice  of  the  defences  to  them. 

1  Ace.  Alley  v.  Caspari,  80  Me.  234,  14  Atl.  12;  Thompson  v.  Cowell,  148  Mass. 
552.  —  Ed. 


SECT.    II.]  ST.    CLAIR    V.    COX.  341 

Ou  the  trial,  evidence  was  given  by  the  defendants  tending  to 
show  that  the  plaintiff  was  not  a  bona  fide  holder  of  the  notes  for 
value.  A  certified  copy  of  that  judgment  was  also  produced  by  them 
and  offered  in  evidence;  but  on  his  objection  that  it  had  not  been 
shown  that  the  court  had  obtained  jurisdiction  of  the  parties,  it  was 
excluded,  and  to  the  exclusion  an  exception  was  taken.  The  jury 
found  for  him  for  the  full  amount  claimed;  and  judgment  having 
been  entered  thereon,  the  defendants  brought  the  case  here  for  review. 
The  ruling  of  the  court  below  in  excluding  the  record  constitutes  the 
only  error  assigned. 

The  judgment  of  the  Circuit  Court  in  Michigan  was  rendered  in 
an  action  commenced  by  attachment.  If  the  plaintiffs  in  that  action 
were,  at  its  commencement,  residents  of  the  State,  of  which  some 
doubt  is  expressed  by  counsel,  the  jurisdiction  of  the  court,  under 
the  writ,  to  dispose  of  the  property  attached,  cannot  be  doubted,  so 
far  as  was  necessary  to  satisfy  their  demand.  No  question  was 
raised  as  to  the  validity  of  the  judgment  to  that  extent.  The  objec- 
tion to  it  was  as  evidence  that  the  amount  rendered  was  an  existing 
obligation  or  debt  against  the  company.  If  the  court  had  not  ac- 
quired jurisdiction  over  the  company,  the  judgment  established  noth- 
ing as  to  its  liabilitj'  beyond  the  amount  which  the  proceeds  of  the 
property  discharged.  There  was  no  appearance  of  the  company  in 
the  action,  and  judgment  against  it  was  rendered  for  16,450  by 
default.  The  officer,  to  whom  the  writ  of  attachment  was  issued, 
returned  that,  by  virtue  of  it,  he  had  seized  and  attached  certain 
specified  personal  property  of  the  defendant,  and  had  also  served 
a  copy  of  the  writ,  with  a  copy  of  the  inventory  of  the  property 
attached,  on  the  defendant,  "by  delivering  the  same  to  Henry  J. 
Colwell,  Esq.,  agent  of  the  said  Winthrop  Mining  Company,  person- 
ally, in  said  county." 

The  laws  of  ]Michigan  provide  for  attaching  property  of  abscond- 
ing, fraudulent,  and  non-resident  debtors  and  of  foreign  corpora- 
tions. They  require  that  the  writ  issued  to  the  sheriff,  or  other 
officer  by  whom  it  is  to  be  served,  shall  direct  him  to  attach  the 
property  of  the  defendant,  and  to  summon  him  if  he  be  found  within 
the  county,  and  also  to  serve  on  him  a  copy  of  the  attachment  and 
of  the  inventory  of  the  property  attached.  They  also  declare  that 
where  a  copy  of  the  writ  of  attachment  has  been  personally  served 
on  the  defendant,  the  same  proceedings  may  be  had  thereon  in  the 
suit  in  all  respects  as  upon  the  return  of  an  original  writ  of  sum- 
mons personally  served  where  suit  is  commenced  by  such  summons. 
2  Comp.  Laws,  1871,  sects.  6397  and  611;}. 

They  also  provide,  in  the  chapter  regulating  proceedings  by  and 
against  corporations,  that  "suits  against  corporations  may  be  com- 
menced by  original  writ  of  Huinmons,  or  by  declaration,  in  tlio  same 
manner  that  personal  actions  may  be  commenced  against  individuals, 
and  sucli  writ,  or  a  copy  of  such  declaration,  in  any  suit  against  a 


342  ST.    CLAIK   V.   COX.  [chap.    III. 

corporation,  may  be  served  on  the  presiding  officer,  the  cashier,  the 
secretary,  or  the  treasurer  thei-eof ;  or,  if  there  be  no  such  officer,  or 
none  can  be  found,  such  service  may  be  made  on  such  other  officer 
or  member  of  such  corporation,  or  in  such  other  manner  as  the  court 
in  which  such  suit  is  brought  may  direct;  "  and  that  "in  suits  com- 
menced by  attachment  in  favor  of  a  resident  of  this  State  against 
any  corporation  created  by  or  under  the  laws  of  any  other  State, 
government,  or  country,  if  a  copy  of  such  attachment  and  of  the 
inventory  of  property  attached  shall  have  been  personally  served  on 
any  officer,  member,  clerk,  or  agent  of  such  corporation  within  this 
State,  the  same  proceedings  shall  be  thereupon  had,  and  with  like 
effect,  as  in  case  of  an  attachment  against  a  natural  person,  which 
shall  have  been  returned  served  in  like  manner  upon  the  defendant." 
2  Comp.  Laws,  1871,  sects.  6544  and  6550. 

The  courts  of  the  United  States  only  regard  judgments  of  the 
State  courts  establishing  personal  demands  as  having  validity  or  as 
importing  verity  where  they  have  been  rendered  upon  personal  cita- 
tion of  the  party,  or,  what  is  the  same  thing,  of  those  empowered  to 
receive  process  for  him,  or  upon  his  voluntary  appearance. 

In  Pennoyer  v.  Neff  we  had  occasion  to  consider  at  length  the 
manner  in  which  State  courts  can  acquire  jurisdiction  to  render  a 
personal  judgment  against  non-residents  which  would  be  received 
as  evidence  in  the  Federal  courts;  and  we  held  that  personal  service 
of  citation  on  the  party  or  his  voluntary  appearance  w^as,  with  some 
exceptions,  essential  to  the  jurisdiction  of  the  court.  The  excep- 
tions related  to  those  cases  where  proceedings  are  taken  in  a  State  to 
determine  the  status  of  one  of  its  citizens  towards  a  non-resident,  or 
where  a  party  has  agreed  to  accept  a  notification  to  others  or  service 
on  them  as  citation  to  himself.     95  U.  S.  714. 

The  doctrine  of  that  case  applies,  in  all  its  force,  to  personal  judg- 
ments of  State  courts  against  foreign  corporations.  The  courts 
rendering  them  must  have  acquired  jurisdiction  over  the  party  by 
personal  service  or  voluntary  appearance,  whether  the  party  be  a 
corporation  or  a  natural  person.  There  is  only  this  difference:  a 
corporation  being  an  artificial  being,  can  act  only  through  agents, 
and  only  through  them  can  be  reached,  and  process  must,  therefore, 
be  served  upon  them.  In  the  State  where  a  corporation  is  formed 
it  is  not  difficult  to  ascertain  who  are  authorized  to  represent  and 
act  for  it.  Its  charter  or  the  statutes  of  the  State  will  indicate  in 
whose  hands  the  control  and  management  of  its  affairs  are  placed. 
Directors  are  readily  found,  as  also  the  officers  appointed  by  them 
to  manage  its  business.  But  the  moment  the  boundary  of  the  State 
is  passed  difficulties  arise;  it  is  not  so  easy  to  determine  who  repre- 
sent the  corporation  there,  and  under  what  circumstances  service  on 
them  wnll  bind  it. 

Formerly  it  was  held  that  a  foreign  corporation  could  not  be  sued 
iu  an  action  for  the  recovery  of  a  personal  demand  outside  of  the 


SECT.    II.]  ST.    CLAIR    V.    COX.  343 

State  by  which  it  was  chartered.  The  principle  that  a  corporation 
must  dwell  iu  the  place  of  its  creation,  and  cannot,  as  said  by  Mr. 
Chief  Justice  Taney,  migrate  to  another  sovereignty,  coupled  with 
the  doctrine  that  an  officer  of  the  corporation  does  not  carry  his  func- 
tions with  him  when  he  leaves  his  State,  prevented  the  maintenance 
of  personal  actions  against  it.  There  was  no  mode  of  compelling 
its  appearance  iu  the  foreign  jurisdiction.  Legal  proceedings  there 
against  it  were,  therefore,  necessarily  confined  to  the  disposition  of 
such  property  belonging  to  it  as  could  be  there  found ;  and  to  author- 
ize them  legislation  was  necessary. 

In  McQueen  v.  Middletou  Manufacturing  Co.,  decided  in  1819,  the 
Supreme  Court  of  New  York,  iu  considering  the  question  whether 
the  law  of  that  State  authorized  an  attachment  against  the  property 
of  a  foreign  corporation,  expressed  the  opinion  that  a  foreign  cor- 
poration could  not  be  sued  in  the  State,  and  gave  as  a  reason  that 
the  process  must  be  served  on  the  head  or  principal  officer  within 
the  jurisdiction  of  the  sovereignty  where  the  artificial  body  existed; 
observing  that  if  the  president  of  a  bank  went  to  New  York  from 
another  State  he  would  not  represent  the  corporation  there;  and  that 
"his  functions  and  his  character  would  not  accompany  him  when  he 
moved  beyond  the  jurisdiction  of  the  government  under  whose  laws 
he  derived  this  character."  IG  Johns.  (N.  Y.)  5.  The  opinion  thus 
expressed  was  not,  perhaps,  necessary  to  the  decision  of  the  case, 
but  nevertheless  it  has  been  accepted  as  correctly  stating  the  law. 
It  was  cited  with  approval  by  the  Supreme  Court  of  Massachusetts, 
in  1834,  in  Peckham  v.  North  Parish  in  Haverhill,  the  court  adding 
that  all  foreign  corporations  were  without  the  jurisdiction  of  the 
process  of  the  courts  of  the  Commonwealth.  IG  Pick.  (Mass.)  274. 
Similar  expressions  of  opinion  are  found  in  numerous  decisions, 
accompanied  sometimes  with  suggestions  that  the  doctrine  might  be 
otherwise  if  the  foreign  corporation  sent  its  officer  to  reside  in  the 
State  and  transact  business  there  on  its  account.  Libbey  v.  Hodg- 
don,  9  N.  H.  394;  Moulin  v.  Trenton  Insurance  Co.,  24  N.  J.  L. 
222. 

This  doctrine  of  the  exemption  of  a  corporation  from  suit  in  a 
State  other  than  that  of  its  creation  was  the  cause  of  much  incon- 
venience, and  often  of  manifest  injustice.  The  great  increase  in  the 
number  of  corporations  of  late  years,  and  the  immense  extent  of 
their  business,  only  made  this  inconvenience  and  injustice  more  fre- 
quent and  marked.  Corporations  now  enter  into  all  the  industries 
of  the  country.  The  business  of  banking,  mining,  manufacturing, 
transportation,  and  insurance  is  almost  entirely  carried  on  by  them, 
and  a  large  portion  of  the  wealth  of  the  country  is  in  their  hands. 
Incorporated  under  the  laws  of  one  State,  they  carry  on  the  most 
extensive  operations  in  other  States.  To  meet  and  obviate  this 
inconvenience  and  injustice,  tiic  legislatures  of  several  States  inter- 
posed, and  provided  for  service  of  ])rocess  o\\  officers  and  agents  of 


344  ST.    CLAIR   V.    COX.  [chap.    III. 

foreign  corporations  doing  business  therein.  Whilst  the  theoretical 
and  legal  view,  that  the  domicile  of  a  corporation  is  only  in  the 
State  where  it  is  created,  was  admitted,  it  was  perceived  that  when 
a  foreign  corporation  sent  its  otficers  and  agents  into  other  States 
and  opened  offices,  and  carried  on  its  business  there,  it  was,  in 
effect,  as  much  represented  by  them  there  as  in  the  State  of  its  crea- 
tion. As  it  was  protected  by  the  laws  of  those  States,  allowed  to 
carry  on  its  business  within  their  borders,  and  to  sue  in  their  courts, 
it  seemed  only  right  that  it  should  be  held  responsible  in  those  courts 
to  obligations  and  liabilities  there  incurred. 

All  that  there  is  in  the  legal  residence  of  a  corporation  in  the  State 
of  its  creation  consists  in  the  fact  that  by  its  laws  the  corporators 
are  associated  together  and  allowed  to  exercise  as  a  body  certain 
functions,  with  a  right  of  succession  in  its  members.  Its  officers 
and  agents  constitute  all  that  is  visible  of  its  existence;  and  they 
may  be  authorized  to  act  for  it  without  as  well  as  within  the  State. 
There  would  seem,  therefore,  to  be  no  sound  reason  why,  to  the 
extent  of  their  agency,  they  should  not  be  equally  deemed  to  repre- 
sent it  in  the  States  for  which  they  are  respectively  appointed  when 
it  is  called  to  legal  responsibility  for  their  transactions. 

The  case  is  unlike  that  of  suits  against  individuals.  They  can 
act  by  themselves,  and  upon  them  process  can  be  directly  served, 
but  a  corporation  can  only  act  and  be  reached  through  agents.  Serv- 
ing process  on  its  agents  in  other  States,  for  matters  within  the 
sphere  of  their  agency,  is,  in  effect,  serving  process  on  it  as  much 
so  as  if  such  agents  resided  in  the  State  where  it  was  created. 

A  corporation  of  one  State  cannot  do  business  in  another  State 
without  the  latter's  consent,  express  or  implied,  and  that  consent 
may  be  accompanied  with  such  conditions  as  it  may  think  proper  to 
impose.  As  said  by  this  court  in  Lafayette  Insurance  Co.  v.  French: 
"These  conditions  must  be  deemed  valid  and  effectual  by  other 
States  and  by  this  court,  provided  they  are  not  repugnant  to  the 
Constitution  or  laws  of  the  United  States,  or  inconsistent  with  those 
rules  of  public  law  which  secure  the  jurisdiction  and  authority  of 
each  State  from  encroachment  by  all  others,  or  that  principle  of 
natural  justice  which  forbids  condemnation  without  opportunity  for 
defence."     18  How.  404,  407;  Paul  v.  Virginia,  8  Wall.  168. 

The  State  may,  therefore,  impose  as  a  condition  'upon  which  a 
foreign  corporation  shall  be  permitted  to  do  business  within  her 
limits,  that  it  shall  stipulate  that  in  any  litigation  arising  out  of  its 
transactions  in  the  State,  it  will  accept  as  sufficient  the  service  of 
process  on  its  agents  or  persons  specially  designated ;  and  the  condi- 
tion would  be  eminently  fit  and  just.  And  such  condition  and  stipu- 
lation may  be  implied  as  well  as  expressed.  If  a  State  permits  a 
foreign  corporation  to  do  business  within  her  limits,  and  at  the  same 
time  provides  that  in  suits  against  it  for  business  there  done,  proc- 
ess shall  be  served  upon  its  agents,  the  provision  is  to  be  deemed  a 


SECT.    II.]  ST.    CLAIR    V.   COX.  345 

condition  of  the  permission ;  and  corporations  that  subsequently  do 
business  in  the  State  are  to  be  deemed  to  assent  to  such  condition  as 
fully  as  though  the}'  bad  specially  authorized  their  agents  to  receive 
ser\ace  of  the  process.  Such  condition  must  not,  however,  encroach 
upon  that  principle  of  natural  justice  which  requires  notice  of  a  suit 
to  a  party  before  he  can  be  bound  by  it.  It  must  be  reasonable,  and 
the  service  provided  for  should  be  only  upon  such  agents  as  may  be 
properly  deemed  representatives  of  the  foreign  corporation.  The 
decision  of  this  court  in  Lafayette  Insurance  Co.  v.  French,  to  which 
we  have  already  referred,  sustains  these  views. ^ 

The  State  of  Michigan  permits  foreign  corporations  to  transact 
business  within  her  limits.  Either  by  express  enactment,  as  in  the 
case  of  insurance  companies,  or  by  her  acquiescence,  they  are  as 
free  to  engage  in  all  legitimate  business  as  corporations  of  her  own 
creation.  Her  statutes  expressly  provide  for  suits  being  brought  by 
them  in  her  courts;  and  for  suits  by  attachment  being  brought 
against  them  in  favor  of  residents  of  the  State.  And  in  these 
attachment  suits  they  authorize  the  service  of  a  copy  of  the  writ  of 
attachment,  with  a  copy  of  the  inventory  of  the  property  attached, 
on  "any  officer,  member,  clerk,  or  agent  of  such  corporation"  within 
the  State,  and  give  to  a  personal  service  of  a  copy  of  the  writ  and  of 
the  inventory  on  one  of  these  persons  the  force  and  effect  of  personal 
service  of  a  summons  on  a  defendant  in  suits  commenced  by  summons. 

It  thus  seems  that  a  writ  of  foreign  attachment  in  that  State  is 
made  to  serve  a  double  purpose,  —  as  a  command  to  the  officer  to 
attach  property  of  the  corporation,  and  as  a  summons  to  the  latter 
to  appear  in  the  suit.  We  do  not,  however,  understand  the  laws  as 
authorizing  the  service  of  a  copy  of  the  writ,  as  a  summons,  upon 
an  agent  of  a  foreign  corporation,  unless  the  corporation  be  engaged 
in  business  in  the  State,  and  the  agent  be  appointed  to  act  there. 
We  so  construe  the  words  "agent  of  such  corporation  within  this 
State."  They  do  not  sanction  service  upon  an  officer  or  agent  of  the 
corporation  who  resides  in  another  State,  and  is  only  casually  in  the 
State,  and  not  charged  with  any  business  of  the  corporation  there. 
The  decision  in  Newell  /'.  Great  Western  Railway  Co.,  reported  in 
the  19th  of  Michigan  Reports,  supports  this  view,  although  that  was 
the  case  of  an  attempted  service  of  a  declaration  as  the  commence- 
ment of  the  suit.  The  defendant  was  a  Canadian  corporation  own- 
ing and  operating  a  railroad  from  Susj^ension  Bridge  in  Canada  to 
the  Detroit  line  at  Windsor  ojjposite  Detroit,  and  carrying  passen- 
gers in  connection  with  the  jMicliigan  Central  Railroad  Company, 
upon  tickets  sold  by  such  companies  respectively.  The  suit  was 
commenced  in  Michigan,  the  declaration  alleging  a  contract  by  the 
defendant  to  carry  the  plaintiff  over  its  road,  and  its  violation  of  the 

1  Ace.  Conipagnie  Generale  Transatlantique  t;.  Law,  [ISD'.i]  A.  C.  431  ;  Fireiiiiui's 
Ins.  Co.  V.  Thompson,  155  111.  204,  40  N.  E.  488  ;  Ruyur  v.  Odd  Fellows'  Ace. 
Assoc,  157  Mass.  367.  —Ed. 


346  ST.  CLAIR  V.  COX.  [chap.  hi. 

contract  by  removing  him  from  its  cars  at  an  intermediate  station. 
The  declaration  was  served  upon  Joseph  Price,  the  treasurer  of  the 
corporation,  who  was  only  casually  in  the  State.  The  corporation 
appeared  specially  to  object  to  the  jurisdiction  of  the  court,  and 
pleaded  that  it  was  a  foreign  corporation,  and  had  no  place  of  busi- 
ness or  agent  or  officer  in  the  State,  or  attorney  to  receive  service  of 
legal  process,  or  to  appear  for  it;  and  that  Joseph  Price  was  not  in 
the  State  at  the  time  of  service  on  him  on  any  official  business  of  the 
corporation.  The  plaintiff  having  demurred  to  this  plea,  the  court 
held  the  service  insufficient.  "The  corporate  entity,"  said  the  court, 
"could  by  no  possibility  enter  the  State,  and  it  could  do  nothing 
more  in  that  direction  than  to  cause  itself  to  be  represented  here  by 
its  officers  or  agents.  Such  representation  would,  however,  neces- 
sarily imply  something  more  than  the  mere  presence  here  of  a  person 
possessing,  when  in  Canada,  the  relation  to  the  company  of  an  officer 
or  agent.  To  involve  the  representation  of  the  company  here,  the 
supposed  representative  would  have  to  hold  or  enjoy  in  this  State 
an  actual  present  official  or  representative  status.  He  would  be  re- 
quired to  be  here  as  an  agent  or  officer  of  the  corporation,  and  not 
as  an  isolated  individual.  If  he  should  drop  the  official  or  represent- 
ative character  at  the  frontier,  if  he  should  bring  that  character  no 
further  than  the  territorial  boundary  of  the  government  to  whose 
laws  the  corporate  body  itself,  and  consequently  the  official  positions 
of  its  officers  also,  would  be  constantly  indebted  for  existence,  it 
could  not,  with  propriety,  be  maintained  that  he  continued  to  possess 
such  character  by  force  of  our  statute.  Admitting,  therefore,  for 
the  purpose  of  this  suit,  that  in  given  cases  the  foreign  corporation 
would  be  bound  by  service  on  its  treasurer  in  Michigan,  this  could 
only  be  so  when  the  treasurer,  the  then  official,  the  officer  then  in  a 
manner  impersonating  the  company,  should  be  served.  Joseph  Price 
was  not  here  as  the  treasurer  of  the  defendants.  He  did  not  then 
represent  them.  His  act  in  coming  was  not  the  act  of  the  company, 
nor  was  his  remaining  the  business  or  act  of  any  besides  himself. 
He  had  no  principal,  and  he  was  not  an  agent.  He  had  no  official 
status  or  representative  character  in  this  State."     19  Mich.  344. 

According  to  the  view  thus  expressed  by  the  Supreme  Court  of 
Michigan,  service  upon  an  agent  of  a  foreign  corporation  will  not 
be  deemed  sufficient,  unless  he  represents  the  corporation  in  the 
State.  This  representation  implies  that  the  corporation  does  busi- 
ness, or  has  business,  in  the  State  for  the  transaction  of  which  it 
sends  or  appoints  an  agent  there.  If  the  agent  occupies  no  repre- 
sentative character  with  respect  to  the  business  of  the  corporation 
in  the  State,  a  judgment  rendered  upon  service  on  him  would  hardly 
be  considered  in  other  tribunals  as  possessing  any  probative  force. 
In  a  case  where  similar  service  was  made  in  New  York  upon  an 
officer  of  a  corporation  of  New  Jersey  accidentally  in  the  former 
State,  the  Supreme  Court  of  New  Jersey  said,  that  a  law  of  another 


SECT.    II.]  ST.    CLAIR    V.    COX.  347 

State  which  sanctioned  such  service  upon  an  officer  accidentally 
within  its  jurisdiction  was  "so  contrary  to  natural  justice  and  to  the 
principles  of  international  law,  that  the  courts  of  other  States  ought 
not  to  sanction  it."  Moulin  v.  Trenton  Insurance  Co.,  24  N.  J.  L. 
222,  234. 

Without  considering  whether  authorizing  service  of  a  copy  of  a 
writ  of  attachment  as  a  summons  on  some  of  the  persons  named  in 
the  statute  —  a  member,  for  instance,  of  the  foreign  corporation, 
that  is,  a  mere  stockholder  —  is  not  a  departure  from  the  principle 
of  natural  justice  mentioned  in  Lafayette  Insurance  Co.  v.  French, 
which  forbids  condemnation  without  citation,  it  is  sutficient  to  ob- 
serve that  we  are  of  opinion  that  when  service  is  made  within  the 
State  upon  an  agent  of  a  foreign  corporation,  it  is  essential,  in  order 
to  support  the  jurisdiction  of  the  court  to  render  a  personal  judg- 
ment, that  it  should  appear  somewhere  in  the  record  —  either  in  the 
application  for  the  writ,  or  accompanying  its  service,  or  in  the  plead- 
ings or  the  finding  of  the  court  —  that  the  corporation  was  engaged 
in  business  in  the  State.  The  transaction  of  business  by  the  cor- 
poration in  the  State,  general  or  special,  appearing,  a  certificate  of 
service  by  the  proper  officer  on  a  person  who  is  its  agent  there  would, 
in  our  opinion,  be  sufficient  j)rima  facie  evidence  that  the  agent  rep- 
resented the  company  in  the  business.  It  would  then  be  open,  when 
the  record  is  offered  as  evidence  in  another  State,  to  show  that  the 
agent  stood  in  no  representative  character  to  the  company,  that  his 
duties  were  limited  to  those  of  a  subordinate  employe,  or  to  a  par- 
ticular transaction,  or  that  his  agency  had  ceased  when  the  matter  in 
suit  arose. 

In  the  record,  a  copy  of  which  was  offered  in  evidence  in  this  case, 
there  was  nothing  to  show,  so  far  as  we  can  see,  that  the  Winthrop 
Mining  Company  was  engaged  in  business  in  the  State  Avhen  service 
was  made  on  Colwell.  The  return  of  the  officer,  on  which  alone  reli- 
ance was  placed  to  sustain  the  jurisdiction  of  the  State  court,  gave 
no  information  on  the  subject.  It  did  not,  therefore,  appear  even 
[jrinia  facw  that  Colwell  stood  in  any  such  representative  character 
to  the  company  as  would  justify  the  service  of  a  copy  of  the  writ  on 
him.  The  certificate  of  the  sheriff,  in  the  absence  of  this  fact  in  the 
record,  was  insufficient  to  give  the  court  jurisdiction  to  render  a  per- 
sonal judgment  against  the  foreign  corporation.  The  record  was, 
therefore,  properly  excluded.  Judgment  affirmed. 


^48  COPIN    V.    ADAMSON,  [CHAP.  III. 


COPIN  V.  ADAMSON. 

Exchequer.     1874. 

[Reported  Law  Rejiorts,  9  Exchequer,  345.] 

Declaration  by  the  assignee  in  banl^ruptcy  of  the  Societe  de  Com- 
merce de  France,  Limited,  on  a  judgment  for  £151  15s.  recovered  on 
the  7th  of  February,  1867,  in  the  empire  of  France,  by  him  against  tlie 
defendant  in  the  Court  of  the  Tribunal  of  Commerce  of  the  Department 
of  the  Seine,  being  a  court  duly  holden,  and  having  jurisdiction  in  that 
behalf. 

Plea.  3.  That  the  suit  was  commenced,  according  to  the  French 
law,  by  process  and  summons,  and  thiit  the  defendant  was  not  at  any 
time  previous  to  the  recovery  of  judgment  resident  or  domiciled  within 
the  jurisdiction  of  the  said  court,  nor  is  he  a  native  of  France,  and  he 
was  not  served  with  any  process  or  summons,  nor  did  he  appear,  nor 
had  he  any  notice  or  knowledge  of  any  process  or  summons,  or  any 
opportunity  of  defending  himself. 

Replications.  1.  That  defendant  was  shareholder  in  a  French  com- 
pany, the  articles  of  which  provided  that  every  shareholder  must  elect 
some  domicile  in  Paris,  or  in  default  thereof  would  be  taken  to  be  domi- 
ciled at  the  office  of  an  imperial  procurator,  for  the  purpose  of  service 
of  process  in  all  disputes  arising  out  of  the  liquidation  of  the  company 
between  the  shareholders  and  the  company  ;  and  that  such  disputes 
should  be  submitted  to  the  proper  French  court.  That  service  was 
made  accordingly,  as  provided  by  French  law. 

2.  That  the  law  of  France  contained  similar  provisions.^ 

Amphlett,  B.  An  important  question  is  raised  on  these  replica- 
tions, involving  the  liability  of  a  British  subject  to  be  sued  in  the  courts 
of  a  foreign  country.  As  to  the  first  replication  demurred  to,  the  court 
is  unanimously  of  opinion  that  the  defendant  is  shown  upon  the  face  of 
it  to  have  contracted  with  the  company,  of  which  he  is  a  shareholder, 
and  whose  representative  the  plaintiff  is,  that  he  would,  under  the  cir- 
cumstances disclosed,  be  amenable  to  the  jurisdiction  of  the  Court  of 
the  Tribunal  of  Commerce  of  the  Department  of  the  Seine.  But  as 
to  the  second  replication,  my  brother  Pigott  and  myself  think  that 
although  the  allegations  are  sufficient  to  show  that  the  defendant's  con- 
tract is  to  be  governed  by  French  law,  still  that  they  do  not  show  that 
he  is  subject  to  the  jurisdiction  of  the  French  court.  The  contract  must 
be  interpreted  by  an  English  tribunal. 

Now,  the  plaintiff  seems  to  have  tliought  that  all  he  need  allege  is 
that  French  law  is  to  govern  the  contract.  But  it  by  no  means  fol- 
lows that  the  defendant  has  subjected  himself  to  a  foreign  jurisdiction. 
The  cases  which  have  been  referred  to  show  that  before  an  English- 
man can  be  made  amenable  to  a  foreign  court,  he  must  bear  either 

1  The  replications,  stated  at  length  by  the  reporter,  are  here  abridged.  —  Ed. 


SECT.    II.]  COPIN    V.    ADAMSON.  349 

ail  absolute  or  a  qualified  or  temporary  allegiance  to  the  country  in 
which  the  court  is.  He  must,  as  is  pointed  out  by  Blackburn,  J.,  in 
Scliibsby  v.  "Westenholz,  Law  Rep.  6  Q.  B.  155,  p.  161,  bo  a  subject 
of  tlie  country,  or  as  a  resident  there  when  the  action  was  commenced 
(or  perhaps  it  would  be  enough  if  he  were  there  when  the  obligation 
was  contracted,  though  upon  tliis  point  doubt  is  expressed),  so  as  to  be 
under  the  protection  of  or  amenable  to  its  laws.  The  learned  judge 
also  puts  two  other  cases  in  which  a  person  might  be  bound,  —  one 
where  he,  as  plaintiff,  has  selected  his  tribunal,  and  the  other  where  he 
has  voluntarily  appeared  before  it  and  takes  the  chance  of  a  judgment 
in  his  favor.  The  defendant's  liability  in  the  latter  case,  however,  is 
left  an  open  question.  But  independently  of  that  question,  I  appre- 
hend that  a  man  ma}'  contract  with  others  that  his  rights  shall  be  de- 
termined not  only  by  foreign  law,  but  by  a  foreign  tribunal,  and  thus, 
by  reason  of  his  contract,  and  not  of  any  allegiance  absolute  or  quali- 
fied, would  become  bound  by  that  tribunal's  decision.  It  is  upon  tiiis 
ground  tliat  I  decide  the  demurrer  to  the  first  replication  in  the  plain- 
tiff's favor.  I  think  tliat  the  defendant  must  be  taken  to  have  agreed 
that  if  he  did  not  elect  a  domicile  one  should  be  elected  for  him  ;  for 
the  articles  of  association  provide  for  its  being  done.  It  is  said  that  it 
is  not  sufficiently  stated  tliat  he  had  notice  of  this  particular  provision  ; 
but  I  think  it  must  be  implied  that  he  had  notice,  from  the  fact  of  his 
becoming  a  shareholder  in  tlie  company. 

I  now  proceed  to  consider  the  second  replication,  which  is  silent 
as  to  tlie  statutes  or  articles  of  association,  but  simply  alleges  that 
according  to  Frencii  law  the  members  of  the  company  w  '-e  bound  to 
elect  a  domicile  ;  and  that,  according  to  French  law,  upon  default  a 
domicile  would  be  elected  for  them  at  a  public  office,  where  process 
might  be  served,  and  that  they  would  be  bound  thereb}'.  I  confess  I 
cannot  find  a  case  whicli  has  gone  so  far  as  to  hold  a  defendant  lial)le. 
under  such  circumstances,  upon  a  foreign  judgment  obtained,  as  this 
was,  without  any  knowledge  on  his  part  of  the  proceedings.  Can  it  be 
said  that  an  Englishman,  for  example,  who  buys  a  share  in  a  foreign 
company  on  the  London  Stock  Exchange,  thereby  becomes  necessarily 
bound  ])y  any  decision  to  which  the  foreign  tribunal  may  come  upon  a 
matter  affecting  his  interests?  Suppose  tliere  liad  been  a  provision  b}'^ 
the  law  of  France  that  whenever  a  member  neglected  to  elect  a  domi- 
cile he  should  pay  double  calls,  are  we  to  enforce  his  liabilit}'  in  an 
action  on  a  judgment  for  such  calls  obtained  against  him  without  his 
knowledge  in  the  foreign  coiu't?  No  doubt  in  tlie  present  case,  where 
tiie  law  of  France  is  in  question,  the  probability  is  tiuit  the  shareholder 
would  not  be  sul)jected  to  any  extraordiuary  or  unjust  liabilities.  But 
if  the  principle  of  law  is  that  which  the  plaintiff  contends  for,  it  must 
be  applied  in  cases  of  countries  where  the  law  might  be  verj'  much 
more  open  to  objection  than  it  is  likely  to  be  in  a  country  such  as 
France. 

It  is  said,  however,  that  the  aiitiioritics  upon  tlie  point  are  decisive. 


350  COPIN   V.    ADAMSON.  [CHAP.  III. 

and  two  were  especialh'  relied  on.  The  first  was  the  Bank  of  Austral- 
asia V.  Harding,  9  C.  B.  661,  19  L.  J.  (C.P.)  345  ;  and  it  is,  I  agree, 
a  strong  authority  in  support  of  the  first  replication,  but  not  of  the 
second.  In  that  case  there  had  been  a  local  act  obtained  giving  power 
to  the  company's  creditors  to  obtain  judgment  against  a  representative 
of  all  the  members,  and  enacting  that  b}'  that  judgment  all  the  mem- 
bers should  be  bound  ;  and  it  was  upon  the  circumstance  that  the  act 
existed  that  the  judgment  of  the  court  was  founded  ;  and  nothing  falls 
from  any  of  the  judges  to  indicate  that  they  would  have  held  the 
defendant  bound  if  there  had  been  no  such  act.  In  their  opinion  the 
defendant  was  to  be  considered  as  a  consenting  party  to  the  passing  of 
the  act,  or  as  one  of  the  parties  at  whose  request  it  was  passed,  and 
therefore  bound  b}'  its  provisions.  See  per  Wilde,  C.  J.,  and  Cress- 
well,  J.,  pp.  685,  687.  In  the  absence  of  such  consent,  it  seems  to  me 
that  the  court  would  have  come  to  a  contrary  conclusion. 

The  second  case  relied  on  was  Vallee  v.  Dumergue,  4  Ex.  290,  18 
L.  J.  (Ex.)  398  ;  but  here,  again,  although  the  decision  supports  the 
first,  it  fails  to  support  the  second  replication.  There  the  defendant 
had  become  bv  transfer  the  owner  of  shares  in  a  French  company  ;  and 
upon  accepting  the  shares  was  bound,  according  to  French  law,  to  elect 
a  domicile.  He  actuall}'  did  so,  and  gave  notice  of  his  election  to  the 
company.  He  was,  therefore,  aware  of  what  the  French  law  was,  and 
had  complied  with  it.  Then,  having  left  the  country,  notice  of  process 
was,  as  here,  left  at  the  elected  domicile,  but  never  reached  the  defend- 
ant against  whom  judgment  b}'  default  was  recovered.  It  was  held 
he  was  liable  on  the  judgment,  but  upon  the  ground  that  he  had  done 
something  more  than  become  a  shareholder  in  the  company  ;  he  had  so 
conducted  himself  as  to  warrant  the  inference  that  he  had  agreed  to  be 
bound  by  the  decision  of  the  foreign  court.  "  The  replication  consists,"^ 
says  Alderson,  B.  (p.  303)  '"  of  a  statement  of  facts  which  show  that 
by  the  agreement  to  which  the  defendant  has  become  a  party,  no  actual 
notice  need  be  given  to  him;"  and,  again  (p.  303),  "It  is  not  con- 
trary to  natural  justice  that  a  man  who  has  agreed  to  receive  a  partic- 
ular mode  of  notification  of  legal  proceedings  should  be  bound  by  a 
judgment  in  which  that  particular  mode  has  been  followed,  even  though 
he  ma}^  not  have  had  actual  notice  of  them." 

For  these  reasons  my  judgment  (in  which  my  brother  Pigott  con- 
curs) is  for  the  plaintiff  upon  the  demurrer  to  the  first  replication,  and 
for  the  defendant  upon  the  demurrer  to  the  second. 

Judgment  accordingly.^ 

Kelly,  C  B.^  [dissenting  on  the  second  replication.]  I  apprehend 
that  it  is  now  established  by  the  law  of  this  country  that  one  who  be- 
comes a  shareholder  in  a  foreign  company,  and  therefore  and  thereby 

1  Ace.  Bank  of  Australasia  v.  Harding,  9  C.  B.  661 ;  Bank  of  Australasia  v.  Nias> 
16  Q.  B.  717. —  Ed. 

2  Part  of  this  opinion  is  omitted. —  Ed. 


SECT.    II.]  EX    PARTE    BLAIN.  351 

a  member  of  that  compan}-,  —  such  compan}-  existing  in  a  foreign 
country,  and  subject  in  all  things  to  the  law  of  that  country,  —  himself 
becomes  subject  to  the  law  of  that  country,  and  to  the  articles  or  con- 
stitutions of  that  company  construed  and  interpreted  according  to  the 
law  of  that  country  in  all  things,  and  as  to  all  matters  and  all  questions 
existing  or  arising  in  relation  to  or  connected  with  the  acts  and  affairs 
and  the  rights  and  liabilities  of  such  company  and  its  members  sever- 
ally and  collectively  ;  and  if  that  company,  by  the  law  of  the  country 
in  which  it  exists,  or  by  the  articles  of  its  constitution,  is  subject  to  the 
jurisdiction  of  a  particular  court  within  that  country,  so  also  is  each 
shareholder  or  member  subject  to  its  jurisdiction  in  all  cases  in  relation 
to  or  connected  with  such  company. 


Ex  PARTE  BLAIN. 
Court  of  Appeal.     1879. 
[Reported  12  Chancery  Division,  522.]  \ 

This  was  an  appeal  from  a  decision  of  Mr.  Register  Pepys,  acting 
as  Chief  Judge  in  Bankruptcy. 

James  Sawers,  of  Liverpool,  and  six  other  persons,  traded  at  Liver- 
pool and  in  London  under  the  firm  of  James  Sawers  &  Co.,  and  at 
Valparaiso  and  other  places  in  South  America  under  the  firm  of 
Sawers,  Woodgate,  &  Co.  The  principal  place  of  business  of  the 
firm  in  England  was  at  Liverpool.  Two  of  the  partners  were  Chilian 
subjects,  domiciled  and  permanently  resident  in  Chili,  and  they  had 
never  been  in  England  or  in  any  part  of  Great  Britain. 

On  the  16th  of  December,  1878,  William  Blain  commenced  an 
action  in  the  Queen's  Bench  Division  against  the  firm  of  James 
Sawers  &  Co.,  in  respect  of  a  debt  of  £2,500  contracted  by  the  firm 
in  England.  The  writ  was  served  the  same  day  on  James  Sawers 
personally,  at  the  place  of  business  of  the  firm  in  Liverpool.  It  was 
not  served  on  any  of  the  other  partners.  On  the  24th  of  January, 
1879,  the  defendants  not  having  appeared  to  the  writ,  judgment  for 
£2,500  and  costs  was  entered  for  the  plaintiff  against  the  defendant 
firm.  A  writ  of  Ji.  fa.  was  issued  upon  the  judgment,  under  which 
the  sheriff  seized  goods  of  the  firm  at  Liverpool  and  sold  them  on 
the  29th  of  January,  1879.  On  the  same  day  the  plaintiff  presented 
a  bankruptcy  petition  in  the  London  court  against  all  the  members 
of  the  firm  of  James  Sawers  &  Co.,  alleging  that  the  levy  of  the  exe- 
cution by  seizure  and  sale  was  an  act  of  bankruptcy  committed  by 
them.  An  ex  parte  order  was  made,  under  rule  66  of  the  Bank- 
ruptcy Rules,  1870,  giving  the  petitioning  creditor  leave  to  serve  the 
j)etition  on  the  two  Chilian  partners  in  Chili.  Before  the  hearing  of 
the  petition  as  against  them  they  appeared  under  protest,  not  submit- 


352  EX  PARTE  BLAIN.  [CHAP.  HI. 

ting  to  the  jurisdiction  of  the  court,  and  asked  that  the  order  for 
service  might  be  discharged,  on  the  ground  that  the  court  had  no 
jurisdiction  over  them.  The  registrar  discharged  the  order.  The 
petitioning  creditor  appealed. 

James,  L.  J.^  It  appears  to  me  that  the  registrar's  order  was  per- 
fectly right.  The  respondents  come  here  under  protest,  as  they  havo 
a  perfect  right  to  do,  to  discharge  an  order  which  was  made  in  tliis 
country,  by  a  court  of  this  country,  on  the  ground  that  it  is  an  order 
which  improperly  emanated,  and  they  ask  to  have  the  order  dis- 
charged, so  that  they  may  never  be  embarrassed,  or  be  liable  to  be 
embarrassed,  by  the  fact  of  such  an  order  having  been  issued. 

It  appears  to  me  that  the  whole  question  is  governed  by  the  broad, 
general,  universal  principle  that  English  legislation,  unless  the  con- 
trary is  expressly  enacted  or  so  plainly  implied  as  to  make  it  the 
duty  of  an  English  court  to  give  effect  to  an  English  statute,  is 
applicable  only  to  English  subjects  or  to  foreigners,  who  by  coming 
into  this  country,  whether  for  a  long  or  a  short  time,  have  made 
themselves  during  that  time  subject  to  English  jurisdiction.  Every 
foreigner  who  comes  into  this  country,  for  however  limited  a  time, 
is,  during  his  residence  here  within  the  allegiance  of  the  sovereign, 
entitled  to  the  protection  of  the  sovereign  and  subject  to  all  the  laws 
of  the  sovereign.  But,  if  a  foreigner  remains  abroad,  if  he  has 
never  come  into  this  country  at  all,  it  seems  to  me  impossible  to 
imagine  that  the  English  legislature  could  have  ever  intended  to 
make  such  a  man  subject  to  particular  English  legislation.  English 
legislation  has  said  that,  if  a  debtor  allows  his  goods  to  be  taken  in 
execution,  certain  consequences  shall  follow,  and  English  legislation 
has  a  right  to  say  that  with  regard  to  an  English  subject.  But  what 
right  has  it  to  say  so  with  regard  to  a  Chilian?  No  doubt  it  has  a 
right  to  say  to  a  Chilian,  or  to  any  other  foreigner,  "  If  you  make  a 
contract  in  England,  or  commit  a  breach  of  a  contract  in  England, 
under  a  particular  act  of  Parliament  a  particular  procedure  may  be 
taken  by  which  we  can  effectually  try  the  question  of  that  contract, 
or  that  breach,  and  give  execution  against  any  property  of  yours  in 
this  country."  But  that  is  because  the  property  is  within  the  pro- 
tection and  subject  to  the  powers  of  the  English  law.  To  what 
extent  the  decision  of  such  a  question  would  be  recognized  abroad 
remains  to  be  considered,  and  must  be  determined  by  the  tribunals 
abroad.  If  a  foreigner,  being  served  with  a  writ  under  the  provi- 
sions of  the  Judicature  Act,  did  not  choose  to  appear,  and  the  legis- 
lature said,  "  If  you  do  not  appear  you  will  commit  a  default  in  that 
way,  and  we  will  give  judgment  against  you,"  whether  that  judg- 
ment would,  under  such  circumstances,  be  recognized  by  foreign 
tribunals,  as  being  consistent  with  international  law  and  the  general 

1  Arguments  of  counsel  and  the  concurring  opinions  of  Brett  and  Cottov, 
L.JJ.,  are  omitted.  —  Ed. 


SECT.  II.]  EX  PARTE  BLAIN.  353 

principles  of  justice,  is  a  matter  which  must  be  determined  by  them. 
But  we  have  to  consider  a  matter,  not  of  British,  but  of  peculiarly 
English  legislation,  because  the  Bankruptcy  Act  is  confined  to  Eng- 
land, and  does  not  extend  to  Scotland  or  Ireland,  except  in  certain 
cases  expressly  provided  for,  and  1  believe  it  does  not  extend  to  the 
colonies.  And  we  have  to  deal  with  the  case  of  a  Chilian  who  says, 
"  I  am  a  Chilian,  and  I  wish  to  be  a  Chilian;  I  have  never  made 
myself  subject  to  English  legislation  or  English  tribunals.  I  do  not 
wish  to  come  here  to  be  made  a  bankrupt."  It  seems  to  me  he  has 
a  right  to  say  that.  As  I  happen  to  know,  there  is  in  the  Sand- 
wich Islands  a  code  of  bankruptcy,  which  was  introduced  by  Kame- 
hameha  II.,  and  I  think  it  would  be  monstrous  if  an  English 
merchant  of  Liverpool,  having  business  transactions  in  the  Sandwich 
Islands,  was  summoned  by  the  court  there  to  appear  in  a  bankruptcy 
proceeding  at  Honolulu.  It  is  not  consistent  with  ordinary  princi- 
ples of  justice  or  the  comity  of  nations  that  the  legislature  of  one 
country  should  call  on  the  subject  of  another  country  to  appear  before 
its  tribunals  when  he  has  never  been  within  their  jurisdiction.  Of 
course,  if  a  foreigner  has  come  into  this  country  and  has  committed 
an  act  of  bankruptcy  here,  he  is  liable  to  the  consequences  of  what 
he  has  done  here;  but,  in  the  absence  of  express  legislative  provi- 
sion, compelling  me  to  say  that  the  legislature  has  done  that  which, 
in  my  opinion,  would  be  a  violation  of  international  law,  I  respect- 
fully decline  to  hold  that  it  has  done  anything  of  the  kind. 

I  therefore  entirely  agree  with  the  decision  of  the  registrar,  that 
the  order  for  service  ought  to  be  discharged.  The  other  ground  on 
which  he  put  his  decision  would,  I  think,  be  sufficient,  namely,  that 
the  whole  of  the  provisions  of  the  Bankruptcy  Act  with  regard  to 
acts  of  bankruptcy  proceed  on  the  commission  of  some  act  or  default 
by  the  debtor.  Sect.  6  begins  with  saying  that  the  following  "acts 
or  defaults  "  are  to  be  included  under  tlie  expression  "acts  of  bank- 
ruptcy," and  the  registrar  was  of  opinion  that  it  would  be  impossible 
to  say  that  these  Chilian  subjects  had  been  guilty  of  any  default. 
I  do  not  at  all  differ  from  him  in  that  conclusion.^ 

1  Ace.  In  re  Pearson,  [1892]  2  Q.  B.  263 ;  In  re  A.  B.  k.  Co.,  [1900]  1  Q.  B.  541. 
In  the  latter  case  Lindlky,  M.  K.,  said  :  "  Bankruptcy  is  a  very  serious  matter.  It 
alters  the  status  of  the  bankrupt.  This  cannot  be  overlooked  or  forgotten  when  we 
are  dealing  with  foreigners,  who  are  not  subject  to  our  jurisdiction.  What  authority 
or  right  has  the  court  to  alter  in  this  way  the  status  of  foreigners,  who  are  not  subject 
to  our  jurisdiction  ?  If  Parliamcait  had  conferred  tiiis  power  in  express  words,  then 
of  course  the  court  would  be  bound  to  exercise  it.  But  the  decisions  go  to  this  ex- 
tent, and  rightly,  I  think,  in  principle,  tliat  unless  Parliament  has  conferred  upon  the 
court  that  power  in  language  wliich  is  unmistakable,  the  court  is  not  to  assume  that 
Parliament  intended  to  do  that  which  might  so  scniously  affect  foreigners  who  are  not 
resident  here,  and  might  give  offence  to  foreign  governments."  —  Ed. 

23 


354         G.    AND   B.    SEWING   MACHINE   CO.   V.   KADCLIFFE.       [CIIAP,    III. 


GROVER  AND   BAKER   SEWING   MACHINE   CO.   v. 
RADCLIFFE. 

Supreme  Court  of  the  United  States.     1890. 
[Reported  137  United  States,  287.] 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland. 

This  was  an  action  brought  in  the  Circuit  Court  of  Cecil  County, 
Maryland,  by  the  Grover  and  Baker  Sewing  Machine  Company 
against  James  and  .John  Beuge,  citizens  of  Delaware,,  by  summons 
and  attachment  served  on  William  P.  Radcliffe  as  garnishee.  The 
suit  was  upon  a  judgment  for  the  sum  of  three  thousand  dollars, 
entered  by  the  prothonotary  of  the  Court  of  Common  Pleas  in  and 
for  the  county  of  Chester,  Pennsylvania,  against  James  and  John 
Benge  (who  were  not  citizens  or  residents  of  Pennsylvania  and  were 
not  served  with  process)  upon  a  bond  signed  by  them,  giving  author- 
ity to  "any  attorney  of  any  court  of  record  in  the  State  of  New  York 
or  any  other  State"  to  confess  judgment  against  them  for  the  amount 
of  the  bond.  The  law  of  Pennsylvania  authorized  the  prothonotary 
of  any  court  to  enter  judgment  upon  such  a  bond.^ 

Fuller,  C.  J.  The  Maryland  Circuit  Court  arrived  at  its  conclu- 
sion upon  the  ground  that  the  statute  of  Pennsylvania  relied  on  did 
not  authorize  the  prothonotary  of  the  Court  of  Common  Pleas  of  that 
State  to  enter  the  judgment;  and  the  Court  of  Appeals  of  Maryland 
reached  the  same  result  upon  the  ground  that  the  judgment  was  void 
as  against  John  Benge,  because  the  court  rendering  it  had  acquired 
no  jurisdiction  over  his  person. 

It  is  settled  that  notwithstanding  the  provision  of  the  Constitution 
of  the  United  States,  which  declares  that  "full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State,"  Art.  IV.,  section  I,  and  the  acts  of 
Congress  passed  in  pursuance  thereof,  1  Stat.  22,  Rev.  Stat.  §  905 
—  and  notwithstanding  the  averments  in  the  record  of  the  judgment 
itself,  the  jurisdiction  of  the  court  by  which  a  judgment  is  rendered 
in  any  State  may  be  questioned  in  a  collateral  proceeding;  that  the 
jurisdiction  of  a  foreign  court  over  the  person  or  the  subject-matter, 
embraced  in  the  judgment  or  decree  of  such  court,  is  always  open  to 
inquiry;  that,  in  this  respect,  a  court  of  another  State  is  to  be 
regarded  as  a  foreign  court;  and  that  a  personal  judgment  is  without 
validity  if  rendered  by  a  State  court  in  an  action  upon  a  money 
demand  against  a  non-resident  of  the  State,  upon  whom  no  personal 
service  of  process  within  the  State  was  made,  and  who  did  not 
appear.  D'Arcy  v.  Ketchum,  11  How.  165;  Thompson  v.  Whitman, 
18  Wall.  457;  Hall  v.  Lanning,  91  U.  S.  160;  Pennoyer  v.  Neff, 
95  U.   S.   714. 

1  This  statement  is  abridged  from  the  statement  of  Fuller,  C.  J.  —  Ed. 


SECT.    II.]       G.    AND    B.    SEWING    MACHINE   CO.    V.    KADCLIFFE.  355 

The  rule  is  not  otherwise  in  the  State  of  Pennsylvania,  where  the 
judgment  in  question  was  rendered;  Guthrie  v.  Lowry,  84  Penn.  St. 
533;  Scott  v.  Noble,  72  Penn.  St.  115;  Noble  v.  Thompson  Oil  Co., 
79  Penn.  St.  354;  Steel  v.  Smith,  7  W.  &  S.  447;  nor  in  the  State 
of  Maryland,  where  the  action  under  review  was  brought  upon  it; 
Bank  of  the  United  States  v.  Merchants'  Bank,  7  Gill,  415;  Clark 
i\  Bryan,  16  Maryland,  171 ;  Weaver  v.  Boggs,  38  Maryland,  255. 
And  the  distinction  between  the  validity  of  a  judgment  rendered  in 
one  State,  under  its  local  laws  upon  the  subject,  and  its  validity  in 
another  State,  is  recognized  by  the  highest  tribunals  of  each  of  these 
States. 

Thus  in  Steel  r.  Smith,  7  W.  &  S.  447,  it  was  decided,  in  1844, 
that  a  judgment  of  a  court  of  another  State  does  not  bind  the  person 
of  the  defendant,  in  another  jurisdiction,  though  it  might  do  so 
under  the  laws  of  the  State  in  which  the  action  was  brought,  and 
that  the  act  of  Congress  does  not  preclude  inquiry  into  the  jurisdic- 
tion, or  the  right  of  the  State  to  confer  it.  The  action  was  brought 
on  a  judgment  rendered  in  Louisiana,  and  Mr.  Chief  Justice  Gibson, 
in  delivering  the  opinion  of  the  court,  said:  "The  record  shows  that 
there  was  service  on  one  of  the  joint  owners,  which,  in  the  estima- 
tion of  the  law  of  the  court,  is  service  on  all ;  for  it  is  affirmed  in 
Hill  V.  Bowman,  already  quoted  [14  La.  445],  that  the  State  of 
Louisiana  holds  all  persons  amenable  to  the  process  of  her  courts, 
whether  citizens  or  aliens,  and  whether  present  or  absent.  It  was 
ruled  in  George  v.  Fitzgerald,  12  La.  604,  that  a  defendant,  though 
he  reside  in  another  State,  having  neither  domicile,  interest  nor 
agent  in  Louisiana,  and  having  never  been  within  its  territorial 
limits,  may  yet  be  sued  in  its  courts  by  the  instrumentality  of  a 
curator  appointed  by  the  court  to  represent  and  defend  him.  All 
this  is  clear  enough,  as  well  as  that  there  was  in  this  instance  a 
general  appearance  by  attorney,  and  a  judgment  against  all  the 
defendants,  which  would  have  full  faith  and  credit  given  to  it  in 
the  courts  of  the  State.  But  that  a  judgment  is  always  regular  when 
there  has  been  an  appearance  by  attorney,  with  or  without  warrant, 
and  that  it  cannot  be  impeached  collaterally,  for  anything  but  fraud 
or  collusion,  is  a  municipal  principle,  and  not  an  international  one 
having  place  in  a  question  of  State  jurisdiction  or  sovereignty. 
Now,  though  the  courts  of  Louisiana  would  enforce  this  judgment 
against  the  persons  of  the  defendants,  if  found  within  reach  of  their 
process,  yet,  where  there  is  an  attempt  to  enfoi'ce  it  by  the  process 
of  another  State,  it  behooves  the  court  whose  assistance  is  invoked 
to  look  narrowly  into  the  constitutional  injunction,  and  give  the 
statute  to  carry  it  out  a  reasonable  interpretation."     pp.  449,  450. 

Referring  to  §  1307  of  Mr.  Justice  Story's  Commentaries  on  the 
Constitution,  and  the  cases  cited,  to  which  he  added  Benton  v. 
Burgot,  10  vS.  &  R.  240,  the  learned  Judge  inquired:  "What,  then, 
is  the  right  of  a  State  to  exercise  authority  over  the  persons  of  those 


356  G.    AND    B.    SEWING   MACHINE    GO.    V.    RADCLIFFE.       [CHAP.    III. 

who  belong  to  another  jurisdiction,  and  who  have  perhaps  not  been 
out  of  the  boundaries  of  it?"  (p.  450)  and  quoted  from  Vattel, 
Burge,  and  from  Mr.  Justice  Story  (Conflict  of  Laws,  c.  14,  §  .539), 
that  "  '  no  sovereignty  can  extend  its  process  beyond  its  own  territo- 
rial limits,  to  subject  other  persons  or  property  to  its  judicial  deci- 
sions. Every  exertion  of  authority  beyond  these  limits  is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property  in  other 
tribunals,'"  and  thus  continued:  "Such  is  the  familiar,  reasonable, 
and  just  principle  of  the  law  of  nations;  and  it  is  scarce  supposable 
that  the  framers  of  the  Constitution  designed  to  abrogate  it  between 
States  which  were  to  remain  as  independent  of  each  other,  for  all  but 
national  purposes,  as  they  were  before  the  revolution.  Certainly  it 
was  not  intended  to  legitimate  an  assumption  of  extraterritorial 
jurisdiction  which  would  confound  all  distinctive  principles  of  sepa- 
rate sovereignty ;  and  there  evidently  was  such  an  assumption  in  the 
proceedings  under  consideration.  .  .  .  But  I  would  perhaps  do  the 
jurisprudence  of  Louisiana  injustice,  did  I  treat  its  cognizance  of 
the  defendants  as  an  act  of  usurpation.  It  makes  no  claim  to  extra- 
territorial authority,  but  merely  concludes  the  party  in  its  own 
courts,  and  leaves  the  rest  to  the  Constitution  as  carried  out  by  the 
act  of  Congress.  When,  however,  a  creditor  asks  us  to  give  such  a 
judgment  what  is  in  truth  an  extraterritorial  effect,  he  asks  us  to  do 
what  we  will  not,  till  we  are  compelled  by  a  mandate  of  the  court  in 
the  last  resort."     p.  451. 

In  Weaver  v.  Boggs,  38  Maryland,  255,  it  was  held  that  suit  could 
not  be  maintained  in  the  courts  of  Maryland  upon  a  judgment  of  a 
court  of  Pennsylvania  rendered  upon  returns  of  riihil  to  two  succes- 
sive writs  of  scire  facias  issued  to  revive  a  Pennsylvania  judgment 
of  more  than  twenty  years'  standing,  where  the  defendant  had  for 
more  than  twenty  years  next  before  the  issuing  of  the  writs  resided 
in  Maryland  and  out  of  the  jurisdiction  of  the  court  that  rendered 
the  judgment.  The  court  said:  "It  is  well  settled  that  a  judgment 
obtained  in  a  court  of  one  State  cannot  be  enforced  in  the  courts  and 
against  a  citizen  of  another,  unless  the  court  rendering  the  judgment 
has  acquired  jurisdiction  over  the  defendant  b}'  actual  service  of 
process  upon  him,  or  by  his  voluntary  ai)pearance  to  the  suit  and 
submission  to  that  jurisdiction.  Such  a  judgment  may  be  perfectly 
valid  in  the  jurisdiction  where  rendered  and  enforced  there  even 
against  the  property,  effects,  and  credits,  of  a  non-resident  defendant 
there  situated ;  but  it  cannot  be  enforced  or  made  the  foundation  of 
an  action  in  another  State.  A  law  which  substitutes  constructive 
for  actual  notice  is  binding  upon  persons  domiciled  within  the  State 
where  such  law  prevails,  and  as  respects  the  property  of  others  there 
situated,  but  can  bind  neither  person  nor  property  beyond  its  limits. 
This  rule  is  based  upon  international  law,  and  upon  that  natural 
protection  which  every  country  owes  to  its  own  citizens.  It  con- 
cedes the  jurisdiction  of  the  court  to  the  extent  of  the  State  where 


SECT.    II.]       G.    AND    B.    SEWING    MACHINE    CO.    V.    RADCLIFFE.  357 

the  judgmeut  is  rendered,  but  upon  the  principle  that  it  would  be 
unjust  to  its  own  citizens  to  give  effect  to  the  judgments  of  a  foreign 
tribunal  against  them  when  they  had  no  opportunity  of  being  heard, 
its  validity  is  denied." 

Publicists  concur  that  domicile  generally  determines  the  particular 
territorial  jurisprudence  to  which  every  individual  is  subjected.  As 
correctly  said  by  Mr.  Wharton,  the  nationality  of  our  citizens  is  that 
of  the  United  States,  and  by  the  laws  of  the  United  States  they  are 
bound  in  all  matters  in  which  the  United  States  are  sovereign;  but 
in  other  matters,  their  domicile  is  in  the  particular  State,  and  that 
determines  the  applieatory  territorial  jurisprudence.  A  foreign  judg- 
ment is  impeachable  for  want  of  personal  service  within  the  juris- 
diction of  the  defendant,  this  being  internationally  essential  to 
jurisdiction  in  all  cases  in  which  the  defendant  is  not  a  subject  of 
the  State  entering  judgment;  and  it  is  competent  for  a  defendant  in 
an  action  on  a  judgmeut  of  a  sister  State,  as  in  an  action  on  a  for- 
eign judgment,  to  set  up  as  a  defence,  want  of  jurisdiction,  in  that 
he  was  not  an  inhabitant  of  the  State  rendering  the  judgment  and 
had  not  been  served  with  process,  and  did  not  enter  his  appearance. 
Whart.  Conflict  Laws,  §§  32,  654,  660;  Story,  Conflict  Laws,  §§  539, 
540,  586. 

John  Benge  was  a  citizen  of  Maryland  when  he  executed  this  obli- 
gation. The  subject-matter  of  the  suit  against  him  in  Pennsylvania 
was  merely  the  determination  of  his  personal  liability,  and  it  was 
necessary  to  the  validity  of  the  judgment,  at  least  elsewhere,  that  it 
should  appear  from  the  record  that  he  had  been  brought  within  the 
jurisdiction  of  the  Pennsylvania  court  by  service  of  process,  or  his 
voluntary  appearance,  or  that  he  had  in  some  manner  authorized  the 
proceeding.  By  the  bond  in  question  he  authorized  "any  attorney 
of  any  court  of  record  in  the  State  of  New  York,  or  any  other  State, 
to  confess  judgment  against  him  (us)  for  the  said  sum,  with  release 
of  errors,  etc."  But  the  record  did  not  show,  nor  is  it  contended, 
that  he  was  served  with  process,  or  voluntarily  appeared,  oi'  that 
judgment  was  confessed  by  an  attorney  of  any  court  of  record  of 
Pennsylvania.  Upon  its  face,  then,  the  judgment  was  invalid,  and 
to  be  treated  as  such  when  offered  in  evidence  in  the  Maryland  court. 

It  is  said,  however,  that  the  judgment  was  entered  against  Benge 
by  a  prothonotary,  and  that  the  prothonotary  had  power  to  do  this 
under  the  statute  of  Pennsylvania  of  F'ebruary  24,  1806.  Laws  of 
Penn.  1805-6,  p.  347.  This  statute  was  proved  as  a  fact  upon  the 
trial  in  Maryland,  and  may  be  assumed  to  have  authorized  the  action 
taken,  though  under  Connay  v.  Halstead,  73  Penn.  St.  354,  that 
may,  perhaps,  be  doubtful.  And  it  is  argued  that  the  statute,  being 
in  force  at  the  time  this  instrument  was  executed,  should  be  read 
into  it  and  considered  as  forming  a  i)art  of  it,  and  therefore  that 
Jolin  Benge  had  consented  that  judgment  might  be  thus  entered 
up  atjainst  hiin  witiiout  service  of  process,  or  appearance  in  person, 
or  tiv  attorney. 


358  FITZSIMMONS    V.    JOHNSON.  [CHAP.    III. 

But  we  do  not  think  that  a  citizen  of  another  State  than  Pennsyl- 
vania can  be  thus  presumptively  held  to  knowledge  and  acceptance 
of  particular  statutes  of  the  latter  State.  What  Benge  authorized 
was  a  confession  of  judgment  by  any  attorney  of  any  court  of  record 
in  the  State  of  New  York  or  any  other  State,  and  be  had  a  right  to 
insist  upon  the  letter  of  the  authority  conferred.  By  its  terms  he 
did  not  consent  to  be  bound  by  the  local  laws  of  every  State  in  the 
Union  relating  to  the  rendition  of  judgment  against  their  own  citi- 
zens without  service  or  appearance,  but  on  the  contrary  made  such 
appearance  a  condition  of  judgment.  And  even  if  judgment  could 
have  been  entered  against  him,  not  being  served  and  not  appearing, 
in  each  of  the  States  of  the  Union,  in  accordance  with  the  laws 
therein  existing  upon  the  subject,  he  could  not  be  held  liable  upon 
such  judgment  in  any  other  State  than  that  in  which  it  was  so 
rendered,  contrary  to  the  laws  and  policy  of  such  State. 

The  courts  of  Maryland  were  not  bound  to  hold  this  judgment  as 
obligatory  either  on  the  ground  of  comity  or  of  duty,  thereby  per- 
mitting the  law  of  another  State  to  override  their  own. 

No  color  to  any  other  view  is  given  by  our  decisions  in  Johnson  v. 
Chicago  &  Pacific  Elevator  Co.,  119  U.  S.  388,  400,  and  Hopkins  v. 
Orr,  124  U.  S.  510,  cited  for  plaintiff  in  error.  Those  cases  in- 
volved the  rendition  of  judgments  against  sureties  on  restitution  and 
appeal  bonds  if  judgment  went  against  their  principals,  and  the 
sureties  signed  with  reference  to  the  particular  statute  under  which 
each  bond  was  given;  nor  did,  nor  could,  any  such  question  arise 
therein  as  that  presented  in  the  case  at  bar. 

Judgment  affirmed.^ 


FITZSIMMONS  v.   JOHNSON. 

Supreme  Court  of  Tennessee.     1891. 

[Reported  90  Tennessee,  416.] 

Caldwell,  J.^  John  W.  Todd  died,  testate,  at  his  residence  in 
Clermont  County,  Ohio,  in  the  early  part  of  the  year  1864.  He 
nominated  his  friends,  John  Johnson  and  C.  W.  Goyer,  of  Memphis, 
Tennessee,  as  executors  of  his  will.  They  accepted  the  trust,  went 
to  Ohio,  and,  on  April  27,  1864,  were  duly  qualified  by  the  Probate 
Court  of  Clermont  County  as  executors  of  the  will. 

1  See  First  Nat.  Bank  v.  Cunningham,  48  Fed.  510  ;  Snyder  v.  Critchfield,  44 
Neb.  66,  62  N.  W.  306  ;  Teel  v.  Yost,  128  N.  Y.  387. 

On  consent  as  a  ground  of  jurisdiction  of  the  person,  see  Wright  v.  Bovnton,  37 
N.  H.  9  ;  McCormick  v.  R.  R.,  49  N.  Y.  303.  —  Ed. 

2  Only  so  much  of  the  opinion  as  deals  with  the  question  of  jurisdiction  is  here 
given.  —  Ed. 


SECT.    II.]  FITZSIMMONS    V.    JOHNSON.  350 

On  November  G,  1865,  the  executors  made  what  purported  to  be  a 
final  settlement  of  the  estate  of  their  testator,  showing  that  they  had 
received  assets  to  the  amount  of  §63,495.2;"),  and  that,  of  this,  they 
had  paid  to  the  widow  of  the  testator,  as  sole  distributee,  $61,040.10, 
and  that  the  other  82,455.15  had  been  used  in  the  payment  of  debts 
and  expenses  of  administration.  This  settlement  was  made  in  the 
Probate  Court  of  Clermont  County.  Ohio,  on  whose  record  the  follow- 
ing entry  was  made:  ''This  day  the  court  examined  the  accounts 
and  vouchers  of  C.  W.  Goyer  and  John  Johnson,  executors  of  the 
estate  of  John  W.  Todd,  deceased,  and  found  the  same  to  be  in  all 
things  correct;  that  they  have  been  regularly  advertised  for  excep- 
tions, and  none  having  been  filed  thereto,  the  same  are  hereby 
approved  and  confirmed.  And  the  court  finds  that  said  executors 
have  paid  all  just  claims  against  said  estate,  and  have  distributed 
the  remainder  according  to  the  will  of  the  testator.  And  the  said 
accounts  are  ordered  to  be  recorded,  and  the  executors  are  discharged." 
The  testator  left  no  children  or  representatives  of  children.  By 
the  first  ten  clauses  of  his  will  he  expressed  certain  desires,  which 
need  not  be  mentioned  in  this  opinion,  and  made  provision  for  his 
widow;  and  by  the  eleventh  clause  he  devised  and  bequeathed  the 
residuum  of  his  estate,  both  real  and  personal,  to  his  four  sisters  and 
one  brother.  The  provision  made  for  the  widow  proved  unsatisfac- 
tory to  her;  hence,  she  failed  to  accept  it.  And  her  non-acceptance 
had  the  same  legal  effect  under  the  Ohio  law  that  an  affirmative 
dissent  has  under  our  law.  She  had  the  same  claims  upon  her  hus- 
band's estate  as  she  would  have  had  if  he  had  died  intestate. 

The  executors  assumed  that  she  was  entitled  to  the  whole  of  his 
personal  estate  after  the  payment  of  debts  and  expenses,  and  upon 
that  assumption  they  paid  her  the  $61,040.10. 

Such  had  been  the  statute  law  of  Ohio,  but  it  was  changed,  so  as 
to  allow  the  widow  only  one-third  of  her  husband's  net  personal 
estate,  a  few  years  before  the  final  settlement. 

On  January  15,  1887,  Mary  A.  Fitzsimmons,  one  of  the  residuary 
legatees,  filed  her  petition  in  error,  in  the  Court  of  Common  Pleas  of 
Clermont  County,  Ohio,  for  the  purpose  of  having  the  judgment  of 
the  Probate  Court  reviewed  and  reversed.  Goyer  having  died  in  the 
meantime,  Johnson  alone,  as  surviving  executor,  was  made  defend- 
ant to  this  petition.  The  petition  was  accompanied  with  an  affi- 
davit that  Johnson  was  a  non-resident  of  the  State  of  Ohio,  and 
could  not,  therefore,  be  personally  served  with  summons,  that  he  had 
no  attorney  of  record  in  the  State,  and  that  it  was  a  proper  case  for 
publication.  Thereupon  ])ublication  was  made  for  Johnson,  as  a 
non-resident,  requiring  him  to  appear  and  plead  to  the  petition;  and 
a  copy  of  a  newspaper  containing  the  published  notice  was  sent  to 
him  at  his  residence  in  Memphis,  Tennessee. 

Johnson  made  default,  and  on  January  20,  1H88,  the  petition  in 
vrrov  was  heard  in  the  Court  of  Coiiimoii    I'leas,  and  the  judgment  of 


360  FITZSIMMONS    V.    JOHNSON.  [CHAP.    III. 

the  Probate  Court  was  reversed  and  set  aside,  and  the  cause  was 
remanded  to  the  Probate  Court  for  furtlier  proceedings.  After  the 
remand,  Mrs.  Fitzsimmons  and  Mrs.  Young,  another  of  the  residu- 
ary legatees,  appeared  in  the  Probate  Court  and  filed  exceptions  to 
the  accounts  of  Goyer  aud  Johnson,  which  had  been  confirmed  by 
that  court  in  1865.  These  exceptions  were  set  for  hearing,  and  a 
copy  thereof,  together  with  a  notice  of  the  time  and  place  of  hearing 
the  same  by  the  court,  was  mailed  to  Johnson  at  Memphis. 

Johnson  again  failed  to  appear.  The  exceptions  were  sustained, 
and,  on  February  2,  1888,  the  Probate  Court  adjudged  that  the  exec- 
utors had  been  improperly  credited  in  the  former  settlement  with 
the  $61,040.10  paid  the  widow,  and  that  they  had  received  S30,000 
besides,  which  they  had  not  reported  or  accounted  for  in  any  way. 
The  court  further  adjudged  that  these  two  sums,  together  with  inter- 
est thereon,  in  all  Si 30, 640,  remained,  or  should  be,  in  the  hands 
of  the  executors  for  distribution;  and  it  was  ordered  that  Johnson, 
as  surviving  executor,  proceed  to  distribute  said  sum  of  $130,640 
according  to  the  will  of  John  W.  Todd,  deceased,  and  according  to 
law. 

That  judgment  is  the  principal  ground  of  the  present  action.  On 
March  28,  1888,  Mrs.  Fitzsimmons  and  the  other  four  residuary 
legatees,  by  themselves  and  their  representatives,  filed  this  bill  in 
the  Chancery  Court  at  Memphis,  to  recover  from  Johnson,  as  surviv- 
ing executor,  and  from  the  estate  of  Goyer,  the  deceased  executor, 
the  said  $130,640,  and  other  sums  alleged  to  have  been  received  by 
the  same  persons  as  executors  of  John  W.  Todd's  estate  in  Tennessee. 

The  chancellor  dismissed  the  bill  on  demurrer,  so  far  as  relief 
was  sought  on  the  Ohio  record,  but  retained  it  for  other  purposes,  to 
be  hereafter  stated.  After  final  decree  on  the  merits  of  the  other 
branch  of  the  cause,  both  complainants  and  defendants  appealed  to 
this  court.  All  material  questions  raised  in  the  Chancery  Court  are 
presented  here  by  assignments  of  error. 

Was  that  part  of  the  bill  seeking  relief  on  the  judgment  of  the 
Probate  Court  in  Ohio  properly  dismissed? 

The  main  ground  of  demurrer  to  that  part  of  the  bill  was  want  of 
jurisdiction  in  that  court  to  pronounce  the  judgment. 

The  question  of  the  court's  jurisdiction  of  the  subject-matter  need 
not  be  discussed  or  elaborated,  for,  by  the  statute  of  Ohio,  her  Pro- 
bate Courts  are  given  general  jurisdiction  to  settle  the  accounts  of 
executors  and  administrators,  and  to  direct  distribution  of  balance 
found  in  their  hands.  Jurisdiction  of  the  subject-matter  was,  there- 
fore, ample  and  complete.     Rev.  Stat.  Ohio,  sect.  534. 

Whether  the  court  bad  jurisdiction  of  the  person  of  Johnson  is 
not  so  easily  answered. 

It  is  conceded  in  the  bill  and  recited  on  the  face  of  the  record  that 
Goyer  was  dead,  and  that  Johnson,  the  surviving  executor,  was  not 
personally  served  with  notice,  either  of  the  appellate  proceedings  in 


SECT.   II.]  FITZSIMMONS   V.   JOHNSON.  361 

the  Court  of  Common  Pleas  or  of  the  subsequent  proceedings  in  the 
Probate  Court,  which  resulted  in  the  judgment  sued  on;  and  that, 
being  a  non-resident,  and  without  an  attorney  of  record  in  the  State, 
only  publication  was  made  for  him. 

It  is  now  well  settled  that  a  personal  judgment  against  a  non- 
resident, rendered  in  an  original  suit,  upon  constructive  notice  — 
that  is,  upon  notice  by  publication  merely  —  is  an  absolute  nullity, 
and  of  no  effect  whatever.  Though  a  State  may  adopt  any  rules  of 
practice  and  legal  procedure  she  may  deem  best  as  to  her  own  citi- 
zens, she  can  adopt  none  that  will  give  her  courts  jurisdiction  of 
non-residents  so  as  to  authorize  personal  judgments  against  them 
without  personal  service  of  process  upon  them. 

By  personal  judgments  we  mean  judgments  in  jJ^^'soncwi  —  as,  for 
payment  of  money  —  in  contradistinction  from  judgments  in  7'em., 
whereby  the  property  of  non-residents,  situated  within  the  territorial 
limits  of  the  State,  may  be  impounded;  for  when  non-residents  own 
property  in  a  particular  State  it  is  subject  to  the  laws  of  that  State, 
and  may  be  attached  or  otherwise  brought  into  custodia  legis  as 
security  for  the  debts  of  the  owners,  and  actually  sold  and  applied 
by  direction  of  the  court,  without  personal  service  and  by  construc- 
tive notice  merely.     Pennoyer  v.  Neff,  95  U.  S.  714. 

The  judgment  before  us  is  confessedly  a  personal  judgment. 
Hence,  if  the  appellate  proceedings  in  the  Court  of  Common  Pleas 
and  the  subsequent  proceedings  in  the  Probate  Court  were  original 
proceedings,  standing  upon  the  same  ground  with  respect  to  notice 
as  an  original  action,  that  judgment  is  void  for  want  of  jurisdiction 
of  the  person. 

The  demurrer  assumed,  and,  in  sustaining  it,  the  chancellor  held, 
that  the  petition  in  error,  by  which  the  cause  was  removed  from  the 
Probate  Court  to  the  Court  of  Common  Pleas,  was,  in  effect,  an 
original  action,  and  that  it  could  be  prosecuted  only  on  notice  by 
personal  service;  and  that,  it  appearing  that  no  such  notice  was 
given,  the  judgment  sued  upon  was  null  and  void. 

We  do  not  concur  in  the  view  that  the  petition  in  error  was  a  new 
suit,  or,  that  to  entitle  petitioner  to  prosecute  the  same,  she  must 
have  given  the  defendant  therein  the  same  notice  required  in  the 
commencement  of  an  original  action.  In  saying  this,  we  are  not 
unmindful  of  the  fact  that  many  of  the  authorities  speak  of  a  writ 
of  error,  whose  office  seems  to  be  the  same  in  most  of  the  States  as 
the  petition  in  error  under  the  Ohio  law,  as  a  new  suit.  Such  is  the 
language  of  some  of  the  earlier  decisions  in  Ohio.  3  Ohio,  3.')7. 
In  some  of  the  cases  in  our  own  State  a  writ  of  error  has  been  called 
a  new  suit  (1  Lea,  290;  13  Lea,  L')l);  in  others  it  is  said  to  be  in 
the  nature  of  a  new  suit  (G  Lea,  83;  13  Lea,  206);  and  in  still 
another  the  court  says  it  is  to  be  regarded  as  a  new  suit.  3  Ileail, 
2o.  But  in  no  case  that  we  have  been  able  to  find,  or  to  which  our 
attention  has  been  calUd,  does  the  court  decide  that  a  writ  of  error 


362  FITZSIMMONS   V.    JOHNSON.  [CHAP.   III. 

is  a  new  suit  in  the  sense  of  being  the  commencement  of  an  original 
action,  or  that  it  requires  the  same  character  and  stringency  of  notice 
as  an  original  action. 

In  the  very  nature  of  the  case  a  writ  of  error  cannot  be  an  original 
action.  A  writ  of  error  lies  alone  in  behalf  of  a  party  or  privy  to  an 
original  suit  already  finally  determined  in  the  lower  court,  and  it 
must  run  against  another  party  or  privy  to  such  original  suit.  A 
writ  of  error  has  no  place  in  the  law  unless  there  has  been  an  origi- 
nal action ;  and,  where  given  scope,  it  is  but  a  suit  on  the  record  in 
the  original  case. 

The  Supreme  Court  of  the  United  States  has  several  times  said 
that  a  writ  of  error  is  rather  a  continuation  of  a  certain  litigation 
than  the  commencement  of  an  original  action,  and  we  think  that  such 
it  is,  most  manifestly.  Cohens  v.  Virginia,  6  Wheaton,  410;  Clark 
V.  Matthewson,  12  Peters,  170;  Nations  v.  Johnson,  24  Howard,  205; 
Pennoyer  v.  Neff,  95  U.  S.,  734. 

A  writ  of  error  is  like  a  new  suit,  in  that  it  can  be  prosecuted  only 
upon  notice  to  the  opposite  party.  But  that  notice  need  not  be  per- 
sonal, as  in  the  commencement  of  an  original  action;  it  may  be 
either  personal  or  constructive,  as  the  State  creating  the  tribunal  may 
provide.     95  U.  S.,  734;  24  Howard,  206. 

In  1865  Goyer  and  Johnson  submitted  themselves  to  the  jurisdic- 
tion of  the  Probate  Court  of  Ohio,  for  the  purpose  of  settling  their 
accounts,  and  then  obtained  a  judgment  in  their  favor.  That  judg- 
ment was  subject  to  review,  and,  if  erroneous,  to  reversal,  by  error 
proceedings  in  the  Court  of  Common  Pleas.  Kev.  Stat.  Ohio,  sect. 
6708. 

To  obtain  such  revision  or  reversal,  it  was  incumbent  on  the  com- 
plaining party  to  give  Goyer  and  Johnson,  or  the  survivor  of  them, 
notice.  Such  notice  was,  by  statute,  authorized  to  be  given  in  any 
one  of  three  ways  —  namely,  by  service  of  summons  on  the  adverse 
party  in  person,  or  by  service  on  his  attorney  of  record,  or  by  publi- 
cation.    Rev.  Stat.,  6713. 

Goyer  being  dead,  and  Johnson  being  a  non-resident,  and  having 
no  attorney  in  the  State,  publication  was  duly  made  at  the  instance 
of  petitioner  in  error.  That  was  all  that  was  required  by  the  law  of 
Ohio,  and  we  are  of  opinion  that  it  gave  the  Appellate  Court  full 
jurisdiction  of  Johnson's  person,  and  authorized  any  judgment  that 
the  merits  of  the  case  required,  so  far  as  he  was  concerned. 

That  court  had  complete  power  to  reverse  the  judgment  of  the 
Probate  Court,  if  found  to  be  erroneous,  and  either  to  render  such 
judgment  as  should  have  been  rendered  below  in  the  first  instance  or 
to  remand  the  case  for  further  proceedings  in  the  latter  court.  Rev. 
Stat.,  6726. 

The  latter  course  was  pursued,  as  has  already  been  seen.  John- 
son, being  properly  before  the  Appellate  Court  by  constructive  ser- 
vice, was  chargeable  with  notice  of  the  reversal  and  remand  of  his 


SECT.    II.]  FITZSIMMONS    I'.    JOHNSON.  363 

case,  and  of  the  subsequent  proceedings  in  the  Probate  Court,  with- 
out additional  notice  b}'  publication  or  otherwise  as  to  the  steps 
taken  under  the  j^'fo'^^'dendo.  In  that  way  he  had  his  day  in  court 
when  the  large  judgment  was  pronounced  against  him,  and  he  is 
bound  by  it  the  same  as  if  he  had  been  personally  served  with 
process. 

That  constructive  notice  of  a  writ  of  error  to  a  non-resident  party, 
when  such  party  was  properly  brought  before  the  lower  court,  is 
sufficient  to  bind  him  by  the  judgment  or  decree  rendered  in  the 
Appellate  Court,  was  expressly  decided  in  the  case  of  Nations  v. 
Johnson,  24  Howard,  195.  In  that  case  Johnson  had  sued  Nations 
in  the  Chancery  Court  in  Mississippi  for  some  slaves.  Decree  was 
for  Nations,  and  he  afterward  removed  himself  and  the  slaves  to  the 
State  of  Texas.  Johnson  prosecuted  a  writ  of  error  to  the  Appellate 
Court  of  Mississippi,  giving  to  Nations  notice  by  publication  only. 
The  Appellate  Court  reversed  the  decree  of  the  chancellor  and  pro- 
nounced a  decree  in  favor  of  Johnson. 

Subsequently  Johnson  sued  Nations  in  one  of  the  District  Courts 
of  the  United  States,  in  the  State  of  Texas,  on  his  decree  rendered 
by  the  State  Court  in  Mississippi.  Nations  defended  on  the  ground 
that  he  had  not  been  personally  served  with  notice  of  the  writ  of 
error  to  the  Appellate  Court.  That  question  being  decided  against 
him,  not  upon  the  facts  but  upon  the  law,  in  the  District  Court, 
Nations  prosecuted  a  writ  of  error  to  the  Supreme  Court  of  the 
United  States,  with  the  result  already  stated.  In  the  opinion,  Mr. 
Justice  Clifford,  speaking  for  a  unanimous  court,  said:  "No  rule 
can  be  a  sound  one  which,  by  its  legitimate  operation,  will  deprive  a 
party  of  his  right  to  have  his  case  submitted  to  the  Appellate  Court; 
and  where,  as  in  this  case,  personal  service  was  impossible  in  the 
Appellate  Court,  through  the  act  of  the  defendant  in  error,  it  must 
be  held  that  publication  according  to  the  law  of  the  jurisdiction, 
is  constructive  notice  to  the  party,  provided  the  record  shows  that 
process  was  duly  served  in  the  subordinate  court,  and  that  the  party 
appeared  and  litigated  the  merits.  .  .  .  Common  justice  requires 
that  a  party,  in  cases  of  this  description,  should  have  some  mode  of 
giving  notice  to  his  adversary;  and  where,  as  in  this  case,  the  record 
shows  that  the  defendant  appeared  in  the  subordinate  court  and 
litigated  the  merits  to  a  final  judgment,  it  cannot  be  admitted  that 
he  can  defeat  an  appeal  by  removing  from  the  jurisdiction,  so  as 
to  render  personal  service  of  tlie  citation  impossible.  On  that  state 
of  facts,  service  by  publication  according  to  the  law  of  the  jurisdic- 
tion and  the  practice  of  the  court,  we  think,  is  free  from  objection, 
and  is  amply  sufficient  to  support  the  judgment  of  the  Ai)pellato 
Court."     24   Howard,   205,   2(»(;. 

The  same  rule  is  announced  in  Pennoyer  v.  NefT,  95  U.  S.  734. 

Text-writers  lay  it  down  as  a  general   rule  that  jurisdiction  once 
acquired  over  the  parlies  in  the  lower  court  may  be  continued  until 


364  BUILDING   AND    INVESTMENT    ASSOC.    V.    HUDSON.      [CHAP.    Ill 

the  final  termination  of  the  controversy  in  the  Appellate  Court  by 
giving  proper  notice  of  the  appellate  proceedings,  and  that  notice  to 
a  non-resident  party  by  publication  merely  is  sufficient.  Freeman  on 
Judgments,  sect.  569;  2  Black  on  Judgments,  sect.  912. 

This  rule  commends  itself  to  all  men  for  its  wisdom  and  justice. 
If  it  did  not  prevail,  a  man  having  an  unjust  judgment  in  a  subordi- 
nate court,  might,  by  removal  from  that  State,  cut  off,  absolutely, 
the  right  of  the  adverse  party  to  a  hearing  in  the  Appellate  Court  on 
writ  of  error:  and,  having  done  so,  he  might  then  enforce  his  unjust 
judgment.  The  adverse  party  would  be  powerless  in  such  a  case. 
He°could  get  relief  neither  in  the  courts  of  the  State  in  which  the 
judgment  was  rendered,  nor  in  those  of  the  State  to  which  the  other 
party  had  removed;  for,  in  the  former  jurisdiction,  the  judgment 
would  be  conclusive  upon  him,  and  if  he  should  go  to  the  latter  to 
relitigate  his  rights,  he  would  be  met  and  defeated  by  the  previous 
adjudication  of  the  same  rights.  One  judgment  would  control  the 
other,  on  the  doctrine  that  the  judgment  of  a  competent  court  in  one 
State  is  entitled  to  the  same  faith  and  credit  in  the  courts  of  every 
other  State  as  it  would  receive  in  those  of  the  State  where  rendered ; 
which  doctrine  will  be  considered  hereafter. 

It  is  not  to  be  implied  that  Johnson  and  Goyer  returned  to  Ten- 
nessee to  hold  or  obtain  any  supposed  advantage,  for  they  were  bona 
fide  citizens  of  this  State  all  along.  But  the  bona  fides  of  the  removal 
does  not  affect  the  rule.^ 


PERMANENT   BUILDING   AND   INVESTMENT 

ASSOCIATION   V.    HUDSON. 

Supreme  Court  of  Queensland.     1896. 

[Reported  7  Queensland  Law  Journal,  23.] 

Application  by  the  Permanent  Building  and  Investment  Associa- 
tion, Ltd.,  to  enforce  a  judgment  for  £130  9s.  5fZ.,  recovered  by 
them  in  the  Supreme  Court  of  New  South  Wales,  against  George 
Hudson,  of  Ipswich,   in  the  colony  of  Queensland. 

In  1887  Hudson,  who  was  then  residing  in  Sydney,  bought  190 
shares  in  the  plaintiff  company,  and  was  duly  registered  as  owner  of 
the  shares.  In  1889  he  came  to  reside  in  Queensland,  and  from  that 
year  onward  he  continued  to  reside  in  Queensland,  paying  occasional 
holiday  visits  to  New  South  Wales.  In  1896  an  action  was  com- 
menced in  the  Supreme  Court  of  New  South  Wales  against  the 
defendant  for  calls  due  in  respect  of  his  shares  in  the  plaintiff  com- 
pany.    The  defendant  was  served  with  the  writ  at  Ipswich,  but  did 

1  See  Weaver  v.  Boggs,  38  Md.  255  ;  Elsasser  v.  Haines,  52  N.  J.  L.  10,  IS  Atl. 
1095.  -  Ed. 


SECT.   II.]       BUILDING    AND    INVESTMENT   ASSOC.    V.    HUDSON.  365 

not  enter  an  appearance,  and    the  plaintiffs  obtained   judgment  by 
default  for  £130  9s.  bd. 

On  the  8th  of  May  leave  was  granted  by  Cooper,  J.,  to  the  plain- 
tiffs to  issue  a  summons  under  s.  22  of  the  Common  Law  Process 
Act  of  1867,  calling  on  the  defendant  to  show  cause  why  the  judg- 
ment should  not  be  enforced  by  the  Supreme  Court  of  Queensland. 
The  summons,  which  was  returnable  before  the  Chief  Justice  in 
Chambers,  was  adjourned  into  court. ^ 

Griffith,  C.  J.  I  do  not  think  there  is  room  for  any  doubt  in  this 
matter.  1  think  the  law  upon  it  has  been  free  of  doubt  for  the  last 
ten  years.  The  courts  of  a  country  have  jurisdiction  over  the  per- 
sons within  that  country.  Also,  as  a  matter  of  practice,  they  assert 
jurisdiction  —  always  under  the  authority  of  some  statute  of  their 
own  country  —  in  their  own  country,  with  respect  to  persons  out  of 
the  jurisdiction  as  to  contracts  made  or  acts  done  within  the  juris- 
diction. That  is  extremely  convenient.  It  is  a  power  conferred  by 
their  own  legislature,  and  it  holds  good  within  their  own  jurisdic- 
tion, but  the  voice  of  the  legislature  does  not  extend  beyond  its 
jurisdiction.  International  Law  does  not,  as  far  as  I  know,  require 
any  country  to  recognize  the  jurisdiction  or  authority  of  any  foreign 
body  or  tribunal  over  its  citizens,  or  over  any  one  who  was  not  a 
citizen  of  the  country  within  which  that  foreign  body  or  tribunal  has 
jurisdiction.  Writs  in  New  South  Wales  run  as  far  as  the  border  of 
New  South  Wales,  and  no  further.  Beyond  that  they  are  mere 
pieces  of  paper  —  mere  notices.  In  the  case  of  the  colonies  which 
have  joined  the  Federal  Council  it  is  different.  Their  writs  in  cases 
where  the  cause  of  action  arose  in  the  colony  in  which  the  action  is 
brought,  run  throughout  federated  Australia.  New  South  Wales  has 
not  thought  fit  to  join  in  that  federation,  and  writs  from  that  colony, 
as  I  have  said,  stop  at  the  border.  This  judgment,  therefore,  was 
obtained  in  the  Supreme  Court  of  New  South  Wales  against  a  person 
who  owed  no  allegiance  to  that  court.  The  document  served  on  him 
was  only  a  piece  of  paper,  to  which,  in  my  opinion,  he  was  in  no 
way  bound  to  pay  attention,  and  which  had  no  effect  in  this  colony, 
although  in  New  South  Wales  it  had  ample  effect,  but  only  because 
the  legislature  there  had  said  so.  The  application  must  be  dis- 
missed with  costs.* 

^  The  arguments  of  counsel  are  omitted.  —  Ed. 

2  Ace.  Brisbane  Oyster  Fishery  Co.  v.  Emerson,  Knox  (N.  S.  W.)  80  ;  Polack  v. 
Schumacher,  3  So.  Austr.  K.  76  ;  Bangarusami  v.  Bala.subramanian,  Ind.  L.  R.  18 
Mad.  496.  —  Ed. 


366  VAN   HEYDEN   V.    SAUVAGE.  [CHAP.    III. 


VAN   HEYDEN   v.    SAUVAGE. 

Civil  Court  of  the  Seine.     1894. 

[Reported  22  Clunet,  592.] 

The  Court.  By  a  parol  contract  of  sale,  March  11,  1893,  at  Paris, 
Vanderheydeu  sold  Count  de  Sauvage-Vercourt,  with  all  usual  war- 
ranties, for  3,000  francs,  a  saddle  horse,  to  be  delivered  at  the  buj^er's 
house  at  Emptinne,  county  of  Dinant,  Belgium.  The  very  day  after 
the  delivery  the  buyei  asserted  that  not  only  did  the  animal  sold  pos- 
sess none  of  the  qualities  represented,  but  had  many  serious  defects. 
All  proposals  of  compromise,  however  advantageous  to  the  seller, 
were  checked  by  the  refusal  of  the  latter  to  take  back  the  horse.  In 
these  circumstances,  Sauvage  sued  Vanderheyden  for  a  rescission  of 
the  sale  in  the  court  of  his  domicile,  at  Dinant.  Vanderheyden 
having  suffered  judgment  by  default,  consented  to  contest  the  ques- 
tion in  the  Belgian  court  and  opposed  the  judgment.  As  a  result 
of  a  new  decree,  confirmed  by  a  judgment  of  the  court  of  Liege, 
an  examination  by  experts  was  made,  at  which  Vanderheyden  was 
present.  The  experts  fully  recognized  the  defects,  and  declared  the 
horse  absolutely  "unfit  for  the  use  to  which  it  was  destined."  Con- 
sequently, the  court  of  Dinant  rescinded  the  sale;  Vanderheyden 
appealed,  and  the  matter  is  now  pending  before  the  court  of  Liege. 

Without  waiting  the  final  result  of  a  suit  the  issue  of  which  he 
feared,  Vanderheyden,  abandoning  the  first  process,  sued  his  adver- 
sary in  his  turn  before  the  court  of  his  own  domicile  in  the  present 
action  to  recover  the  price  of  the  horse.  Sauvage  prays  for  a  con- 
tinuance till  the  court  of  Liege  shall  finally  determine  the  suit  pend- 
ing before  it;  but  Vanderheyden  opposes  the  motion  on  the  ground 
that  the  plea  of  Utlspendance  cannot  be  allowed,  since  the  French 
and  Belgian  courts  are  independent.  The  French  courts,  to  be  sure, 
are  not  bound  by  foreign  judgments;  but  a  Frenchman  is  not  for- 
bidden in  an  action  against  him  by  a  foreigner  to  accept  trial  before 
the  court  of  his  adversary's  domicile;  but  by  this  very  acceptance  he 
has  clearly  substituted  the  foreign  judges  for  his  own  natural  judges, 
and  consequently  has  attributed  to  their  decision  the  same  effects  as  a 
decision  of  the  court  of  his  own  domicile  would  have.  Now  Vander- 
heyden wishes  to  turn  to  the  French  courts  after  having  pleaded 
before  the  Belgian;  that  is  to  say,  to  litigate  the  same  question  suc- 
cessivel}'  before  two  courts,  so  as  to  take  advantage  of  the  chances 
of  a  double  process.  Such  an  attempt  is  allowed  neither  in  equity 
nor  in  law.  In  fact,  it  is  impossible  to  allow  any  process,  before 
whatever  court,  French  or  foreign,  it  be  brought,  to  be  abandoned 
at  the  caprice  or  at  the  interest  of  a  party  who  thus  retains  in 
advance  the  chance  of  accepting  or  of  rejecting  the  decision  of  the 
court  accoi'diiig  as  it  may  be  favorable  or  the  reverse.     The  accept- 


SECT.    II.]  GIRARD   V.    TRAMONTANO,  367 

ance  of  such  a  rule  would  as  a  result  give  the  most  shocking  advan- 
tage to  the  rash  or  dishonest  party  who  could  thus,  on  his  own 
authority  and  to  his  sole  profit,  nullify  a  decision  which  finds  his 
adversary  entitled,  and  compel  ihe  latter  to  submit  to  the  chances  of 
a  new  suit  before  foreign  judges. 

In  short,  two  courts  of  the  same  sort  cannot  take  cognizance  at 
the  same  time  of  the  same  suit,  though  one  be  French,  the  other 
foreign.  Vanderheyden,  in  accepting  Belgian  jurisdiction,  has  at  the 
same  time  closed  every  means  of  recourse  to  the  jurisdiction  of  his 
own  country;  after  having  submitted  to  trial  before  the  court  of 
Dinant,  been  present  at  the  expert  examination  and  taken  an  appeal 
from  the  decision,  it  is  not  now  lawful  to  disregard  all  its  effects, 
and  to  consider  the  former  suit  as  non-existent.  In  a  word,  he  has 
by  his  own  will  entered  into  a  judicial  contract  with  his  adversary, 
by  virtue  of  which  the  Belgian  jurisdiction  has  been  and  should 
remain  alone  competent  to  decide  the  case. 

The  Court  for  these  reasons  declares  itself  incompetent;  declares 
Vanderheyden  without  right  to  sue,  and  sends  the  affair  back  to  the 
court  which  has  already  taken  jurisdiction. 


GIRARD   V.    TRAMONTANO. 

Court  of  Appeal  of  Naples.     1883. 

[Reported  12  Clunet,  464.] 

In  accordance  with  the  terms  of  Art.  14  of  the  French  Civil  Code, 
Mr.  Tramontano,  an  Italian  subject  domiciled  in  Italy,  was  sued  by 
Girard  &  Co.  in  the  Tribunal  of  Commerce  of  the  Seine,  upon  the 
balance  of  an  account.  Judgment  for  the  plaintiff,  and  application 
to  the  Court  of  Appeal  of  Naples  for  an  exequafur. 

The  Court.  When  the  execution  of  a  foreign  judgment  is  asked 
for  in  Italy,  the  first  duty  of  the  Italian  judges,  by  Art.  941  of  the 
Code  of  Civil  Procedure,  is  to  make  sure  that  the  judgment  was  ren- 
dered by  a  court  that  had  jurisdiction.  It  is  usually  necessary,  to 
be  sure,  in  determining  this  point,  to  be  governed  by  the  law  of  the 
country  in  which  the  judgment  was  rendered  (Art.  10  of  the  prelimi- 
nary dispositions  of  the  Civil  Code).  But  the  provisions  of  Art.  14 
of  the  French  Civil  Code  are  not  sufficient  to  confer  jurisdiction  on 
the  Tribunal  of  Commerce  of  the  Seine.  .   .  . 

This  text,  to  be  sure,  provides  that  even  a  foreigner  non-residont 
in  France  may  always  be  cited  before  a  French  court  upon  obliga- 
tions toward  a  Frenchman,  tliough  contracted  abroad.  But  this  ini- 
limited  power  given  to  the  French  creditor  is  manifestly  opposed  to 
Art.   12  of  the  Preliminary  Dispositions  of  the  Civil  Code.^     It  is 

1  "In  no  case  sliall  tl,.  laws,  .contracts,  ..r  J.Mjiui.uits  of  a  f„n-i<rn  country  or  tlu" 
J.rovisions  of  a  pnv.f  rontra.i  l,av,.  |.ow,m-  to  .Icn.-at-  fmn.  tli.  laws  of  tl.is  kin-nlom 


368  MASSIE    V.    WATTS.  [CHAP.    III. 

contrary  to  the  provisions  of  Art.  105,  number  2,  of  the  Code  of 
Civil  Procedure,  submitting  to  Italian  jurisdiction  suits  relative  to 
obligations  performable  in  Italy,  or  resulting  from  contracts  made  or 
acts  done  in  the  kingdom.  It  thus  contains  a  usurpation  of  juris- 
diction that  belongs  to  the  Italian  courts.  It  sets  up  an  extravagant 
claim  of  jurisdiction,  contrary  to  the  law  of  nations,  and  therefore 
not  to  be  recognized  in  any  State  whose  municipal  public  law  it 
violates. 

It  is  in  vain  to  urge  that  a  foreigner  in  contracting  with  a  French- 
man, whenever  he  knows  the  provisions  of  Art.  14  of  the  Code 
Napoleon,  is  regarded  as  having  waived  the  right  of  being  judged 
by  his  natural  judges.  For  the  individual  who  cannot  by  his  own 
will  obtain  within  his  own  country  other  judges  than  those  provided 
by  the  laws  of  the  State,  cannot,  a  fortiori^  escape  the  rules  of  com- 
petence established  by  public  international  law. 


MASSIE   V.   WATTS. 
Supreme  Court  of  the  United  States.     1810. 

[Reported  6  Cranck,  148.] 

This  was  an  appeal  from  the  decree  of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Kentucky,  in  a  suit  in  equity 
brought  by  Watts,  a  citizen  of  Virginia,  against  Massie,  a  citizen  of 
Kentucky,  to  compel  the  latter  to  convey  to  the  former  1,000  acres  of 
land  in  the  State  of  Ohio,  the  defendant  having  obtained  the  legal 
title  with  notice  of  the  plaintiff's  equitable  title.^ 

Marshall,  C.  J.  This  suit  having  been  originally  instituted,  in 
the  court  of  Kentucky,  for  the  purpose  of  obtaining  a  conveyance 
for  lands  lying  in  the  State  of  Ohio,  an  objection  is  made  by  the 
plaintiff  in  error,  who  was  the  defendant  below,  to  the  jurisdiction 
of  the  court  by  which  the  decree  was  rendered. 

Taking  into  view  the  character  of  the  suit  in  chancery  brought  to 
establish  a  prior  title  originating  under  the  land  law  of  Virginia 
against  a  person  claiming  under  a  senior  patent,  considering  it  as 
a  substitute  for  a  caveat  introduced  by  the  peculiar  circumstances 
attending  those  titles,  this  court  is  of  opinion,  that  there  is  much 
reason  for  considering  it  as  a  local  action,  and  for  confining  it  to 
the  court  sitting  within  the  State  in  which  the  lands  lie.  Was  this 
cause,  therefore,  to  be  considered  as  involving  a  naked  question  of 

relating  to  persons,  to  property,  or  to  obligations,  nor  from  those  which  in  any  way 
concern  the  public  order  and  good  morals. " 

1  The  statement  of  facts  is  omitted.  Only  so  much  of  the  opinion  as  deals  with 
the  question  of  jurisdiction  is  given.  —  En. 


SECT.  II.]  MASSIE  V.    WATTS.  369 

title,  was  it,  for  example,  a  contest  between  Watts  and  Powell,  the 
Jurisdiction  of  the  Circuit  Court  of  Kentucky  would  not  be  sus- 
tained. But  where  the  question  changes  its  character,  where  the 
defendant  in  the  original  action  is  liable  to  the  plaintiff,  either  in 
consequence  of  contract,  or  as  trustee,  or  as  the  holder  of  a  legal 
title  acquired  by  any  species  of  ma/a  fides  practised  on  the  plaintiff, 
the  principles  of  equity  give  a  court  jurisdiction  wherever  the  person 
may  be  found,  and  the  circumstance,  that  a  question  of  title  may  be 
involved  in  the  inquiry,  and  may  even  constitute  the  essential  point 
on  which  the  case  depends,  does  not  seem  sufficient  to  arrest  that 

jurisdiction.  ,      <^,  u 

In  the  celebrated  case  of  Penn  v.  Lord  Baltimore,  the  Chancellor 
of  Encrland  decreed  a  specific  performance  of  a  contract  respecting 
lands  lying  in  North  America.  The  objection  to  the  jurisdiction  of 
the  court,  hi  that  case,  as  reported  by  Vezey,  was  not  that  the  lands 
lay  without  the  jurisdiction  of  the  court,  but  that,  in  cases  relating 
to  boundaries  between  provinces,  the  jurisdiction  was  exclusively  in 
the  king  and  council.  It  is  in  reference  to  this  objection,  not  to  an 
objection  that  the  lands  were  without  his  jurisdiction,  that  the  chan- 
cellor says,  "This  court,  therefore,  has  no  original  jurisdiction  on 
the  direct  question  of  the  original  right  of  boundaries."  The  reason 
why  it  had  no  original  jurisdiction  on  this  direct  question  was,  that 
the  decision  on  the  extent  of  those  grants,  including  dominion  and 
political  power,  as  well  as  property,  was  exclusively  reserved  to  the 

king  in  council. 

In  a  subsequent  part  of  the  opinion,  where  he  treats  of  the  objec- 
tion to  the  jurisdiction  of  the  court,  arising  from  its  inability  to 
enforce  its  decree  !n  rem,  he  allows  no  weight  to  that  argument. 
The  strict  primary  decree  of  a  court  of  equity  is,  he  says,  m  per- 
sonam, and  may  be  enforced  in  all  cases  where  the  person  is  within 
its  jurisdiction.  In  confirmation  of  this  position  he  cites  the  prac- 
tice of  the  courts  to  decree  respecting  lands  lying  in  Ireland  and  in 
the  colonies,  if  the  person  against  whom  the  decree  was  prayed  be 

found  in  England.  r,~    ,,      a  t     a 

In  the  case  of  Arglasse  v.  Muschamp,  1  Vernon,  /a,  the  defend- 
ant, residing  in  England,  having  fraudulently  obtained  a  rent  charge 
on  lands  lying  in  Ireland,  a  bill  was  brought  in  England  to  set  it 
•jside  To  an  objection  made  to  the  jurisdiction  of  the  court  the 
chancellor  replied:  "This  is  surely  only  a  jest  put  upon  the  jurisdic- 
tion of  this  court  by  the  common  lawyers;  for  when  you  go  about  to 
bind  the  lands  and  grant  a  sequestration  to  execute  a  decree,  then 
they  readily  tell  you  that  the  authority  of  this  court  is  only  to  regu- 
late a  man's  conscience,  and  ought  not  to  affect  the  estate,  but  that 
this  court  must  afjere  in  personam  only;  and  when,  as  in  this  case, 
you  prosecute  the  person  for  a  fraud,  they  lell  you  that  you  must  not 
intermeddle  here,  because  the  fraud,  though  committed  here,  con- 
cerns lands  that  lie  in   Irchmd,  which  uiakcs  the  jurisdiction  local, 

24 


370  MASSIE    V.   WATTS.  [CHAP.    III. 

and  so  wholly  elude  the  jurisdiction  of  this  court."  The  chancellor, 
in  that  case,  sustained  his  jurisdiction  on  principle,  and  on  the 
authority  of  Archer  and  Preston,  in  which  case  a  contract  made 
respecting  lands  in  Ireland,  the  title  to  which  depended  on  the  act 
of  settlement,  was  enforced  in  England,  although  the  defendant  was 
a  resident  of  Ireland,  and  had  only  made  a  casual  visit  to  England. 
On  a  rehearing  before  Lord  Keeper  North  this  decree  was  affirmed. 

In  the  case  of  The  Earl  of  Kildare  v.  Sir  Morrice  Eustace  and 
Fitzgerald,  1  Vern.  419,  it  was  determined  that  if  the  trustee  live  in 
England,  the  chancellor  may  enforce  the  trust,  although  the  lands  lie 
in  Ireland. 

In  the  case  of  Toller  v.  Carteret,  2  Vern.  494,  a  bill  was  sustained 
for  the  foreclosure  of  a  mortgage  of  lands  lying  out  of  the  jurisdic- 
tion of  the  court,  the  person  of  the  mortgagor  being  within  it. 

Subsequent  to  these  decisions  was  the  case  of  Penn  against  Lord 
Baltimore,  1  Vez.  444,  in  which  the  specific  performance  of  a  con- 
tract for  lands  lying  in  North  America  was  decreed  in  England. 

Upon  the  authority  of  these  cases,  and  of  others  which  are  to  be 
found  in  the  books,  as  well  as  upon  general  principles,  this  court  is 
of  opinion  that,  in  a  case  of  fraud,  of  trust,  or  of  contract,  the  juris- 
diction of  a  court  of  chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that  court  may 
be  affected  by  the  decree. 

The  inquiry,  therefore,  will  be,  whether  this  be  an  unmixed  ques- 
tion of  title,  or  a  case  of  fraud,  trust,  or  contract. 

The  facts  in  this  case,  so  far  as  they  affect  the  question  of  juris- 
diction, are,  that,  in  1787,  the  land  warrant,  of  which  Watts  is  now 
the  proprietor,  and  which  then  belonged  to  Oneal,  was  placed  with- 
out any  special  contract  in  the  hands  of  Massie,  as  a  common  locator 
of  lands.  In  the  month  of  August  in  the  same  year  he  located  1,000 
acres,  part  of  this  warrant,  to  adjoin  a  previous  location  made  on 
the  same  day  for  Robert  Powell. 

In  the  year  1793  Massie,  as  deputy-surveyor,  surveyed  the  lands 
of  Thomas  Massie,  on  which  Robert  Powell's  entry  depended,  and 
the  land  of  Robert  Powell,  on  which  Oneal's  entry,  now  the  property 
of  Watts,  depended.  On  the  27th  of  June,  1795,  Nathaniel  Massie, 
the  plaintiff  in  error,  entered  for  himself  2,366  acres  of  land  to 
adjoin  the  surveys  made  for  Robert  Powell,  Thomas  Massie,  and  one 
Daniel  Stull.  The  entry  of  Daniel  Stull  commences  at  the  upper 
corner  of  Ferdinand  Oneal's  entry  on  the  Scioto,  and  the  entry  of 
Ferdinand  Oneal  commences  at  the  upper  corner  of  Robert  Powell's 
entry  on  the  Scioto;  so  that  the  land  of  Oneal  would  be  supposed, 
from  the  entries,  to  occupy  the  space  on  the  Scioto  between  Powell 
and  Stull.  Nathaniel  Massie's  entry,  which  was  made  after  survey- 
ing the  lands  of  Thomas  Massie  and  of  Robert  Powell,  binds  on  the 
Scioto,  and  occupies  the  whole  space  between  Powell's  survey  and 
Stull 's  survey. 


SECT.    II.]  MASSIE    V.    WATTS.  371 

In  the  year  1796,  Nathaniel  Massie  surveyed  530  acres  of  Oneal's 
entry,  ehietly  within  StuU's  survey,  and  afterwards,  in  the  spring  of 
1797,  purchased  Powell's  survey.  Nathaniel  Massie' s  entry  is  sur- 
veyed and  patented.  In  1801  Massie  received  from  Watts,  in  money, 
the  customary  compensation  for  making  his  location. 

It  is  alleged  that  Nathaniel  Massie  has  acquired  for  himself  the 
laud  which  was  comprehended  within  Oneal's  entry,  and  has  sur- 
veyed for  Oneal  laud  to  which  his  entry  can  by  no  construction  be 
extended. 

If  this  allegation  be  unsupported  by  evidence,  there  is  an  end  of 
the  case.  If  it  be  supported,  had  the  court  of  Kentucky  jurisdiction 
of  the  cause? 

Although  no  express  contract  be  made,  yet  it  cannot  be  doubted 
that  the  law  implies  a  contract  between  every  man  who  transacts 
business  for  another  at  the  request  of  that  other  and  the  person  for 
whom  it  is  transacted.  A  common  locator  who  undertakes  to  locate 
lands  for  an  absent  person  is  bound  to  perform  the  usual  duties  of 
a  locator,  and  is  entitled  to  the  customary  compensation  for  those 
duties.  If  he  fails  in  the  performance  of  those  duties,  he  is  liable  to 
the  action  of  the  injured  party,  which  may  be  instituted  wherever  bis 
person  is  found.  If  his  compensation  be  refused,  he  may  sue  there- 
for in  any  court  within  whose  jurisdiction  the  person  for  whom  the 
location  was  made  can  be  found.  In  either  action  the  manner  in 
which  the  service  was  performed  is  inevitably  the  subject  of  investi- 
gation, and  the  difficulty  of  making  it  cannot  oust  the  court  of  its 
jurisdiction. 

From  the  nature  of  the  business  and  the  situation  of  the  parties, 
the  person  for  whom  the  location  is  made  being  generally  a  non- 
resident, and  almost  universally  unacquainted  with  the  country  in 
which  his  land  is  placed,  it  is  the  duty  of  the  locator  not  only  to 
locate  the  lands,  but  to  show  them  to  the  surveyor.  He  also  neces- 
sarily possesses  the  power  to  amend  or  to  change  the  location  if 
he  has  sufficient  reason  to  believe  that  it  is  for  the  interest  of  his 
employer  so  to  do.  So  far  as  respects  the  location  he  is  substituted 
in  the  place  of  the  owner,  and  his  acts  done  bona  fide  are  the  acts  of 
the  owner. 

If,  under  these  circumstances,  a  locator  finding  that  the  entry  he 
has  made  cannot  be  surveyed,  instead  of  withdrawing  it  or  amend- 
ing it  so  as  to  render  it  susceptible  of  being  carried  into  execution, 
secures  the  adjoining  land  for  liimself,  and  shows  other  land  to  the 
surveyor  wiiicli  the  location  cannot  be  construed  to  comprehend,  it 
appears  to  this  court  to  be  a  breach  of  duty,  which  amounts  to  a 
violation  of  the  implied  contract,  and  subjects  him  to  the  action  of 
the  party  injured. 

If  the  location  be  sustainable,  and  tiie  locator,  instead  of  showing 
the  land  really  covered  by  the  entry,  shows  other  land,  and  appro- 
priates to  himself  the  land  actually  entered,  this  appears  to  the  court 


372  WHITE   V.   WHITE.  [CHAP.    Ill 

to  be  a  species  of  ynala  fides  which  will,  in  equity,  convert  him  into 
a  trustee  for  the  party  originally  entitled  to  the  land. 

In  either  case  the  jurisdiction  of  the  court  of  the  State  in  which 
the  person  is  found  is  sustainable. 

If  we  reason  by  analogy  from  the  distinction  between  actions  local 
and  transitory  at  common  law,  this  action  would  follow  the  person, 
because  it  would  be  founded  on  an  implied  contract,  or  on  neglect  of 

duty. 

If  we  reason  from  those  principles  which  are  laid  down  in  the 
books  relative  to  the  jurisdiction  of  courts  of  equity,  the  jurisdiction 
of  the  court  of  Kentucky  is  equally  sustainable,  because  the  defend- 
ant, if  liable,  is  either  liable  under  his  contract,  or  as  trustee.^ 


WHITE  V.    WHITE. 

Court  of  Appeals,  Maryland.     1835. 

[Reported  7  Gill  ^'  Johnson,  208.] 

Buchanan,  C.  J.  The  bill  in  this  case  was  filed  for  the  sale  of  the 
real  estate  of  Abraham  White,  deceased,  and  the  distribution  of  the 
proceeds  among  his  heirs,  after  deducting  the  amount  of  a  subsisting 
lien,  by  mortgage,  on  a  part  of  it ;  on  the  ground  that  it  will  not  admit 
of  an  advantageous  division,  and  that  it  would  be  to  the  advantage 
of  all  the  parties  interested,  that  it  should  be  sold,  which  is  admitted 
by  the  answers.  A  tract  of  land,  part  of  this  estate,  is  stated  in  the 
bill,  to  lie  in  the  State  of  Pennsylvania,  as  to  which  the  chancellor 
dismissed  the  bill  for  the  want  of  jurisdiction,  and  decreed  a  sale  of 
that  portion  of  the  property,  which  lies  in  this  State,  appointing  a 
trustee  for  that  purpose.  And  the  only  question  is,  whether  he 
should  not  also  have  decreed  a  sale  by  the  trustee,  of  the  tract  of 
land  in  Pennsylvania. 

It  would  be  rather  an  idle  thing  in  chancery,  to  entertain  jurisdic- 
tion of  a  matter  not  within  its  reach,  and  make  a  decree  which  it 
could  have  no  power  to  enforce,  or  to  compel  a  compliance  with. 
And  the  absence  of  that  very  power  is  a  good  test  by  which  to  try 
the  question  of  jurisdiction.  It  would  be  a  solecism  to  say,  that  the 
chancellor  has  jurisdiction  to  decree  in  rem,  where  the  thing  against 

1  Ace.  Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444  ;  McGee  v.  Sweeney,  84  Cal. 
100,  23  Pac.  1117  ;  Cloud  v.  Greasley,  125  111.  313,  17  N.  E.  826  ;  Reed  v.  Reed,  75 
Me.'  264  ;  Brown  v.  Desmond,  100  Mass.  267  ;  Vreeland  v.  Vreeland,  49  N.  J.  Eq. 
322,  24  Atl.  551  ;  Gardner  v.  Ogden,  22  N.  Y.  327  ;  Guerrant  v.  Fowler,  1  Hen.  &  M. 
5  ;  Poindexter  v.  BurweU,  82  Va.  507. 

So  a  court  of  equity  has  jurisdiction  to  enjoin  the  conveyance  of  foreign  land : 
Frank  v.  Peyton,  82  Ky.  150  ;  and  to  enjoin  the  obstruction  of  a  foreign  private  way  : 
Alexander  v.  Tolleston  Club,  110  111.  65.  —  Ed. 


SECT.    II.]  WHITE   V.    WHITE.  373 

which  the  decree  goes,  and  is  aloue  the  subject  of,  aud  to  be  operated 
upon  by  it,  is  beyond  the  territorial  jurisdiction  of  the  Chancery 
Court,  and  not  subject  to  its  authority,  and  the  decree,  if  passed, 
would  itself  be  nugatory  for  the  want  of  power,  or  jurisdiction  to 
give  it  effect.  Chancery  can  have  no  jurisdiction  where  it  can  give 
no  relief.  Now  what  jurisdiction  has  the  Chancery  Court  of  Mary- 
land over  lands  lying  in  a  foreign  country,  or  in  another  State;  and 
having  no  jurisdiction  of  lands  so  situated,  what  authority  has  it  to 
decree  a  sale  of  them,  and  impart  to  its  trustee  authority  to  go  into 
such  State,  or  foreign  country,  to  carry  its  decree  into  effect,  by 
making  sale  of  them. 

It  is  true  that  where  the  decree  sought  is  m  2}erso7iam,  and  may  be 
carried  into  effect  by  process  of  contempt,  the  Court  of  Chancery 
here  may  have  jurisdiction,  although  it  may  affect  land  lying  in 
another  State,  the  defendant  being  in  the  State  of  Maryland,  as  in 
a  case  of  trust,  or  fraud,  or  of  contract.  As  where  a  bill  is  filed 
against  a  person  in  this  State,  for  the  specific  performance  of  a  con- 
tract, or  agreement,  relating  to  land  in  another  State.  In  such  a 
case,  the  decree  does  not  act  directly  upon  the  land,  but  upon  the 
defendant  here,  and  within  the  jurisdiction  of  the  court.  So  where 
the  land  itself  that  is  sought  to  be  affected  lies  within  the  State,  and 
the  proceedings  are  against  a  person  residing  out  of  the  State. 

But  in  this  case  the  bill  seeks  a  sale  of  land  in  Pennsylvania,  not 
within  the  jurisdiction  of  the  Court  of  Chancery  of  Maryland;  and 
the  decree  if  made  would  not  be  i/i  personam^  but  for  the  sale  of  the 
land,  through  the  instrumentality  of  a  trustee,  and  could  not  be 
enforced  by  any  process  from  that  court.  It  is  not  like  the  case  of 
Penn  v.  Lord  Baltimore,  1  Ves.  Sr.  444,  where  the  bill  was  for  the 
specific  performance  of  articles  concerning  the  boundaries  of  the  then 
provinces  of  IMaryland  and  Pennsylvania,  Lord  Baltimore  the  de- 
fendant being  in  England,  and  subject  to  the  compulsory  process  of 
chancery  there.  Nor  like  the  other  cases  to  be  found  in  the  English 
Chancery  reports,  affecting  lands  not  lying  in  England,  where  the 
proceedings  were  in  personam.,  the  defendants  residing  there,  and 
subject  to  process  of  contempt,   etc. 

Decree  affirmed  with  costs.  * 

^  Ace.  Watkins  v.  Ilolman,  16  Pet.  25 ;  Johnson  v.  Kimbro,  3  Head,  557  ;  Gibson 
V.  Burgess,  82  Va.  650.  But  see  Dunlap  v.  Byers,  110  Mich.  109,  67  N.  W.  1067  ; 
Wood  V.  Warner,  15  X.  J.  Eq.  81. 

Similarly,  a  court  of  e(}uity  may  not  order  the  abatement  of  a  foreign  nuisance : 
P.  V.  Central  R.  R.,  42  N.  Y.  283  ;  nor  grant  specific  performance  of  a  contract  to  dig 
a  ditch  in  a  foreign  state  :  Port  Royal  R.  R.  v.  Hammond,  58  Ga.  523  ;  nor  declare  a 
deed  of  foreign  land  void:  Carpenter  v.  Strange,  141  U.  S.  87  ;  Davis  v.  Headley,  22 
N.  J.  Eq.  115 ;  but  see  C.  v.  Levy,  23  Grat.  21.  —  Ed. 


374  LYNDE   V.    COLUMBUS,    ETC.    RAILWAY.  [CHAP.   IIL 


LYNDE   V.   COLUMBUS,  CHICAGO  AND   INDIANA 
CENTRAL   RAILWAY. 

Circuit  Court  of  the  United  States.    1893. 

[Reported  57  Federal  Reporter,  993.] 

Baker,  District  Judge.  The  plaintiff  brings  this  suit  as  a  bond- 
holder for  whom  the  trustee  has  refused  to  bring  suit  against  the 
Columbus,  Chicago  &  Indiana  Central  Railway  Company,  Archibald 
Parkhurst,  trustee,  and  the  Pittsburgh,  Cincinnati,  Chicago  &  St. 
Louis  Railway  Company,  for  the  foreclosure  of  a  trust  deed  or  mort- 
gage executed  by  the  Columbus,  Chicago  &  Indiana  Central  Railway 
Company  to  Archibald  Parkhurst,  as  trustee,  to  secure  1,000  bonds,  of 
$1,000  each,  issued  by  it,  and  asking  for  the  sale  of  its  railroad  em- 
braced in  said  trust  deed,  extending  from  Indianapolis,  Ind.,  to 
Columbus,  Ohio,  together  with  its  franchises,  equipments,  property, 
tolls,  and  interests,  —  that  is  to  say,  the  lands,  tenements,  heredita- 
ments, fixtures,  goods,  and  chattels  of  the  Columbus,  Chicago  & 
Indiana  Central  Railway  Company  ;  its  property,  rights,  privileges, 
interest,  and  estate  of  every  description  and  nature  ;  its  rails,  ties, 
fences,  buildings,  and  erections ;  its  right  of  way,  cars,  engines,  tools, 
and  machinery  ;  its  rents,  reservations,  and  reversions,  of  every  nature, 
or  so  much  thereof  as  lies  and  is  within  the  State  and  district  of 
Indiana.  The  bill  avers  that  the  Pittsburgh,  Cincinnati,  Chicago  & 
St.  Louis  Railway  Company  claims  some  interest  in  the  said  premises, 
and  prays  that  it  may  be  required  to  make  answer  to,  all  and  singular, 
the  allegations  and  charges  contained  in  the  bill,  and  that  said  prop- 
erty may  be  decreed  to  be  sold  free  and  discharged  from  any  and  all 
claims  or  interest  of  the  parties  respondent  to  the  bill. 

The  Pittsburgh,  Cincinnati,  Chicago  &  St.  Louis  Railway  Company 
has  filed  a  plea  alleging,  in  substance,  that  the  plaintiff  herein,  as  plain- 
tiff, brought  suit  against  the  defendants  herein,  as  defendants,  on  the 
same  bonds  and  trust  deed  or  mortgage,  in  the  common  pleas  court  of 
Franklin  County,  Ohio  ;  that  said  court  is  a  court  of  general  jurisdic- 
tion in  law  and  equity  ;  that  the  cause  was  tried,  and  that  the  court 
found  the  bonds  in  question  to  be  valid  obligations  of  the  Columbus, 
Chicago  &  Indiana  Central  Railway  Company,  and  that  the  plaintiff 
was  entitled  to  a  decree  for  their  payment ;  and  the  court  decreed  that 
unless  the  defendant  the  Columbus,  Chicago  &  Indiana  Central  Rail- 
way Company  should,  within  thirty  days,  pay,  or  cause  to  be  paid,  the 
sum  so  found  due,  the  mortgage  should  be  foreclosed,  and  the  mort- 
gaged property  sold,  and  that  upon  the  sale  the  purchaser  should  be 
entitled  to  hold  said  railway  and  property  free  and  discharged  from  the 
lien  or  incumbrance  of  all  the  parties  to  the  suit.  The  plaintiff  has  set 
the  plea  down  for  argument,  and  the  question  raised  is  whether  the 


SECT.    II.]  LYNDE    V.   COLU.MBL'S,    ETC.    KAILWAY.  375 

facts  pleaded  are  sufficient  to  constitute  a  bar  to  the  maintenance  of 
the  present  suit. 

The  plaintiff  contends  that  the  plea  is  insufficient  because  it  contains 
no  averment  that  either  the  mortgagor,  the  Columbus,  Chicago  & 
Indiana  Central  Railway  Company,  or  the  mortgagee,  Archibald  Park- 
hurst,  trustee,  was  brought  within  the  jurisdiction  of  the  court  in  Ohio 
by  process  personally  served,  or  by  appearance  in  person  or  by  attor- 
ney. The  plea  avers  that  the  said  Charles  R.  Lynde  filed  his  bill  of 
complaint,  denominated  by  the  law  of  the  State  of  Ohio  a  "  petition," 
against  this  defendant  and  its  codefendants  the  Columbus,  Chicago  & 
Indiana  Central  Railway  Company  and  Archibald  Parkhurst,  trustee, 
and  it  then  proceeds  to  aver  that  the  cause  was  heard,  and  a  decree 
rendered  against  all  the  defendants  ;  but  it  fails  to  show  affirmatively 
that  the  court  acquired  jurisdiction  of  the  persons  of  the  defendants, 
either  by  service  of  process  or  by  appearance. 

Pleas  in  bar,  in  suits  in  equity,  are  not  favorites  of  the  law,  because 
the  defendant  has  other  and  ample  modes  of  defence  open  to  him. 
They  are  therefore  required  to  be  drawn  with  precision,  and  must 
disclose  upon  their  face  a  complete  defence.  The  facts  necessary  to 
render  the  plea  an  equitable  bar  to  the  case  made  b}'  the  bill  must 
be  clearly  and  distinctly  averred,  and  such  plea  will  not  be  aided  by 
argument,  inference,  or  intendment.  McCloskey  v.  Barr,  38  Fed. 
Rep.  165.  This  rule,  however,  is  not  to  be  construed  as  conflicting 
with  that  other  salutary  rule  that  legal  presumptions  ought  not  to  be 
stated  in  a  pleading.  Steph.  PI.  (1871)  p.  312  ei  seq.  When  the  facts 
are  stated  from  which  the  law  raises  a  certain  legal  presumption,  it  is 
not  necessary  for  the  pleader  to  do  more,  in  order  to  have  the  benefit 
of  such  legal  presumption.  In  the  case  of  Galpin  v.  Page,  18  Wall. 
350,  the  rule  is  thus  stated  :  "  It  is  undoubtedly  true  that  a  superior 
court  of  general  jurisdiction,  proceeding  within  the  general  scope  of  its 
powers,  is  presumed  to  act  riglitly.  AH  intendments  of  law,  in  such 
cases,  are  in  favor  of  its  acts.  It  is  presumed  to  have  jurisdiction  to 
give  the  judgment  it  rendered,  until  the  contrarj-  appears ;  and  this 
presumption  embraces  jurisdiction,  not  only  of  the  cause  or  subject- 
matter  of  the  action  in  which  the  judgment  is  given,  but  of  the  parties 
also.  The  former  will  generally  appear  from  the  character  of  the  judg- 
ment, and  will  be  determined  by  the  law  creating  the  court,  or  prescrib- 
ing its  general  powers.  The  latter  should  regularly  appear  by  evidence 
in  the  record  of  service  of  process  upon  the  defendant,  or  his  appear- 
ance in  the  action.  But  when  the  former  exists  the  latter  will  l)e 
presumed.  This  is  familiar  law,  and  it  is  asserted  in  all  the  adjudged 
cases.  The  rule  is  different  with  respect  to  courts  of  special  and 
limited  authorit}'.  As  to  them,  there  is  no  presumption  of  law  in  favor 
(jf  their  jurisdiction.  That  must  affirmatively  appear  by  sufficient  evi- 
dence or  proper  averment  in  the  record,  or  their  judgments  will  be 
rleemed  void  on  their  face." 

The  judgment  in  question  was  rendered  ])y  a  court  having  generat 


376  LYNDE    V     COLUMBUS,   ETC.    RAILWAY.  [CHAP.    IIL 

jurisdiction  iu  law  and  equity,  and  the  legal  presumption  is  that  the 
court  had  jurisdiction  of  the  parties  and  subject-matter,  and  had  power 
to  pronounce  the  judgment  it  did ;  and  this  presumption  cannot  be 
overcome,  except  by  averment  and  proof  that  it  proceeded  without 
jurisdiction.  It  is  true  that,  when  the  record  of  a  former  judgment  is 
set  up  as  establishing  some  collateral  fact  involved  in  a  subsequent 
litigation,  it  must  be  pleaded  strictly  as  an  estoppel ;  and  the  rule  is 
that  such  pleading  must  be  framed  with  the  utmost  precision,  and  it 
cannot  be  aided  by  inference  or  intendment.  When,  however,  a  former 
judgment  or  decree  is  set  up  in  bar  of  a  subsequent  action,  or  as  having 
determined  the  entire  merits  of  the  controversy,  it  is  not  required  to  be 
pleaded  with  any  greater  strictness  than  any  other  plea  in  bar,  or  any 
plea  in  avoidance  of  the  matters  set  up  in  the  antecedent  pleading  of 
the  opposite  party.  Aurora  City  v.  West,  7  Wall.  82  ;  Gray  v.  Pingi-y, 
17  Vt.  419;  Perkins  v.  Walker,  19  Vt.  144;  1  Greenl.  Ev.  (12th  ed.) 
p.  566  ;  Shelley  v.  Wright,  Willes,  9.  The  plea  is  not  bad  for  failing  to 
aver  that  the  court  had  acquired  jurisdiction  over  the  parties  by  service 
of  process  or  appearance.  If,  in  truth,  the  court  proceeded  to  render  the 
decree  in  question  without  having  acquired  jurisdiction  of  the  defend- 
ants, that  fact,  to  avail  the  plaintiff  here,  should  have  been  set  up  by 
replicatioi\j  instead  of  setting  the  plea  down  for  argument.  Rogers  v. 
Odell,  39  N.  H.  452;  Spaulding  v.  Baldwin,  31  Ind.  376;  Biddle  v. 
Wilkins,  1  Pet.  686;  Pennington  v.  Gibson,  16  How.  65;  Campe 
V.  Lassen,  67  Cal.  139,  7  Pac.  Rep.  430  ;  Vanfleet,  Collat.  Attack, 
§§  846  and  847,  and  authorities  there  cited. 

It  follows  that  the  sufficiency  of  the  plea  must  be  determined  on  the 
assumption  that  the  court  in  Ohio  had  jurisdiction  of  the  defendants 
when  the  cause  before  it  was  heard  and  decided.  The  cause  of  action 
there  was  founded  on  the  same  bonds  and  mortgage  or  trust  deed  which 
constitute  the  cause  of  action  here.  The  mortgage  or  trust  deed  in 
suit  was  executed  by  a  railroad  corporation  organized  by  the  consolida- 
tion of  two  corporations,  one  of  which  was  organized  under  the  laws 
of  the  State  of  Ohio,  and  the  other  under  the  laws  of  the  State  of 
Indiana.  The  consolidated  company,  presumably,  became  invested 
with  all  the  property  and  francliises  of  the  constituent  corporations. 
Its  franchise  to  be  a  consolidated  corporation,  and  to  build,  own,  and 
operate  a  line  of  railway  extending  from  Columbus,  Ohio,  to  Indian- 
apolis, Ind.,  is  undoubtedly  an  entirety,  while  the  immovable  property 
of  the  company  covered  by  the  mortgage  has  its  situs  in  both  States. 
It  is  earnestly  insisted  that  the  decree  of  the  Ohio  court  is  binding  and 
conclusive  because  the  court  had  jurisdiction  of  the  parties  and  of  the 
subject-matter,  and  that  the  present  suit  to  foreclose  the  same  mortgage 
or  trust  deed  cannot  be  maintained  because  by  that  decree  the  right  of 
action  growing  out  of  the  bonds  and  mortgage  has  passed  in  remjudi- 
catam.  It  is  undoubtedly  true  that  courts  possessing  general  chancery 
powers  have  jurisdiction  to  relieve  against  fraud,  to  enforce  trusts,  and 
to  compel  the  specific  performance  of  contracts  in  relation  to  immovable 


SECT.    II.]  LYNDE   V.   COLUMBUS,   ETC.    RAILWAY.  377 

property  having   its  situs  elsewhere  than  in  the  state  or  country  where 
the  courts  exist,  whenever  jurisdiction  has  been  acquired,  by  appear- 
ance, or  by  personal  service  of  process,  over  the   persons  on  whom  the 
obligation   rests.     Penn  c.  Lord   Baltimore,   1  Ves.   Sr.  444  ;  Earl  of 
Kildare  i-.  Eustace,  1  Vern.  419  ;  Arglasse  v.  Muschamp,  Id.  75  ;  Toller 
c.  Carteret,  2  Vern.  494  ;  Massie   v.  Watts,   6  Cranch,    148  ;    Mills   r. 
Duryea,  7  Cranch,  481  ;  Hampton  r.  McConnell,  3  Wheat.  234  ;  Mc- 
Gilvray  v.  Avery,  30  Vt.  538;  Davis  c.  Headley,  22  N.  J.  Eq.  115; 
Dobson   V.  Pearce,  12   N.  Y.  156  ;  U.  S.  Bank  v.  Merchants'  Bank  of 
Baltimore,  7  Gill,  415  ;  Burnley  v.  Stevenson,  24  Ohio  St.  474.    In  the 
case  of  fraud,  trust,  or  contract,  the  jurisdiction  of  a  court  possessing 
general  equity  powers  is  sustainable  wherever  the  person   to  be  bound 
by  the  decree  is  found,  thougli  the  decree  may  incidentally  affect  lands 
without  its  territorial  jurisdiction.     The  decree  proceeds  in  personam  ^ 
and  is  binding  on  the  conscience  of  the  party  ;  and  the  court  may,  by 
attachment  or  sequestration,  compel  the  party  to  perform  that  which, 
in  equity  and  good  conscience,  he  ought  to  have  done  without  coercion. 
Aequitas  agit  in  personam.  Conceding  that  the  court  in  Ohio  had  juris- 
diction of  the  parties  and  of  the   subject-matter,  had  it  power,  by  its 
decree,  to  merge  tlie  lien  of  the  mortgage  on   the  property  embraced 
therein,  having  its  situs  in  Indiana?     The  Ohio  court  may  compel  the 
defendants  to  execute  a  conveyance  or  release  of  the  mortgaged  prem- 
ises in  such  form  as  may  be  necessary  to  transfer  the  legal  title  to  the 
property  according  to  the  law  of  this  State,  and  such  as  will  be  sufficient 
to  bar  an  action  elsewhere.^     The  plea  does  not  aver  that  the  execu- 
tion of  any  such  conveyance  or  release  has  been  compelled.      Until 
such  conveyance  or  release  has  been  executed,  the  lien  of  the  mortgage  on 
the  immovable  property  embraced  in  it,  situated  in  this  State,  remains 
unaffected,  unless  the  court  in  Ohio  was  clothed  with  power  enabling  it 
to  affect  the  status  of  real  estate  outside  of  the  State  which  created  the 
court,  by  a  decree  operating  in  rem. 

It  is  elementary  that  no  sovereignty  can  extend  its  process  beyond 
its  own  territorial  limits,  to  subject  persons  or  property  to  its  judicial 
decisions.  Every  attempted  exertion  of  authority  of  this  sort  beyond 
its  limits  is  a  mere  nullity,  incapable  of  binding  such  person  or  property 
in  any  other  forum.  Story,  Confl.  Laws  (7th  ed.),  §  539.  A  suit  can- 
not be  maintained  against  a  person  so  as  absolutely  to  bind  his  prop- 
erty situated  in  another  sovereignt}-,  nor  so  as  absolutely  to  bind  his 
right  and  title  to  immovable  property  whose  situs  is  elsewhere.  "  It  is 
true,"  says  Story  in  his  Conllict  of  Laws  (7th  ed.  §  543),  "  that  some 
nations  do,  in  maintaining  suits  in  personam,  attempt  indirectly,  by 
their  judgments  and  decrees,  to  bind  property  situate  in  other  countries  ; 
but  it  is  always  with  the  reserve  that  it  binds  the  person  only  in  their 
own  courts,  in  regard  to  such  property.  And  certainly  there  can  be  no 
pretense  that  such  judgments  or  decrees  bind  the  propert}'  itself,  or  the 

1  Ace.  Mead  v.  N.  Y.  H.  &  N.  R.  H.,  45  Conn.  199  ;  Eaton  v.  Mcrall,  80  Me.  346, 
29  Atl.  1103  ;  Union  Trust  Co.  v.  H.  K.,  102  N.  Y.  729,  7  N.  E.  822.  —  En. 


378  LYNDE    V.    COLUMBUS,    ETC.    RAILWAY.  [CHAP.    IIL 

rights  over  it  which  are  established  by  the  laws  of  the  place  where  it  is 
situate."  And  again  he  sa^'S :  "In  respect  to  immovable  property', 
ever}'  attempt  by  any  foreign  tribunal  to  found  a  jurisdiction  over  it  must, 
from  the  very  nature  of  the  case,  be  utterly  nugator}',  and  its  decree 
must  be  forever  incapable  of  execution  in  rem."  These  principles  have 
been  recognized  and  acted  upon  by  all  courts  as  having  their  founda- 
tion in  reason,  and  as  essential  to  the  peace  and  security  of  independent 
states.  In  Watkins  v.  Holman,  16  Pet.  25,  it  was  held  that  a  court  of 
chancery  might  decree  the  conveyance  of  land  in  any  other  State,  and 
might  enforce  the  decree  by  process  against  the  defendant,  but  that 
neither  the  decree  itself,  nor  any  conve3'ance  under  it,  except  by  the 
person  in  whom  the  title  is  vested,  could  operate  beyond  the  jurisdic- 
tion of  the  court.  The  same  principle  is  affirmed  and  acted  upon  in 
Boswell  V.  Otis,  9  How.  336,  and  Northern  Indiana  R.  Co.  v.  Michigan 
Cent.  R.  Co.,  15  How.  233.  Indeed,  no  principle  is  more  firmlj-  settled 
than  that  the  disposition  of  real  estate,  whether  by  deed,  descent,  or 
any  other  mode,  must  be  governed  b\'  the  laws  of  the  State  where  the 
land  is  situated.  It  is  argued  that,  in  respect  of  immovable  property 
mortgaged  by  an  interstate  railway  company,  a  different  rule  has  been 
established  by  the  case  of  MuUer  v.  Dows,  94  U.  S.  444.  It  is  con- 
tended that  the  court  there  held  that,  as  the  railroad  and  its  franchise 
were  an  entirety,  any  court  having  jurisdiction  of  the  parties  and 
subject-matter  could  make  a  valid  decree  of  foreclosure,  which  would 
operate  on  the  entire  railroad  property,  as  well  without  as  within  the 
State  where  the  decree  was  pronounced,  and  that  it  would  completely 
merge  the  lien  of  the  mortgage.  What  was  there  said,  giving  apparent 
support  to  this  contention,  was  merel}'  ar[/uendo,  and  was  not  essential 
to  the  judgment  pronounced.  In  that  case  the  Circuit  Court  of  the 
United  States  for  the  District  of  Iowa  passed  a  decree  of  foreclosure 
and  sale  of  a  railroad  extending  from  a  point  in  Iowa  to  a  point  in 
Missouri,  and  owned  by  a  corporation  formed  by  the  consolidation  of 
a  corporation  of  Missouri  with  a  corporation  of  Iowa.  The  entire  line 
was  covered  by  one  trust  deed,  and  the  suit  to  foreclose  was  brought 
by  the  trustee.  The  mortgagees  were  also  before  the  court,  and  the 
sale  was  made  by  a  master  at  the  instance  of  the  trustee.  It  was  held 
that  the  decree  was  not  void,  so  far  as  it  directed  the  foreclosure  and 
sale  of  that  part  of  the  railroad  l3'ing  in  Missouri,  and  that  the  trustee 
could  be  required  by  the  court  in  Iowa  to  make  a  deed  to  the  purchaser 
in  confirmation  of  the  sale.  In  my  judgment,  this  case  does  not  over- 
turn the  well-established  doctrine  that  a  court  in  one  State  cannot  pass 
a  decree  which  shall  operate  to  change  the  title  to,  or  merge  a  lien 
upon,  immovable  propert}'  in  another  State.  The  title  in  that  case  was 
transferred  by  the  court  compelling  the  execution  of  a  power  of  sale, 
and  not  by  force  of  the  decree.  Mercantile  Trust  Co.  v.  Kanawha  & 
O.  Ry.  Co.,  39  Fed.  Rep.  337 ;  Farmers'  Loan  &  Trust  Co.  v.  Postal 
Tel.  Co.,  55  Conn.  334,  11  Atl.  Rep.  184.  The  case  last  cited  is 
exactly  in  point.     The  Postal  Telegraph  Compan}-,  a  New  York  corpo- 


I 


SECT.    II.]  YOUNG    V.    DREYFUS.  379 

ration,  mortgaged  all  its  propert}',  vrhich  was  situated  in  several  States, 
including  Connecticut  and  New  York,  to  the  plaintiffs,  in  trust,  to 
secure  the  payment  of  its  bonds.  Upon  a  failure  to  pay  the  interest, 
the  plaintiffs  brought  a  suit  for  a  foreclosure  in  the  Supreme  Court  in 
the  city  of  New  York.  Judgment  was  rendered  for  the  plaintiffs,  pur- 
suant to  which  a  referee  was  appointed,  who  sold  all  the  property, 
including  the  real  estate  in  Connecticut,  and  executed  a  conveyance  of 
the  same  to  the  purchaser.  Suit  was  brought  to  foreclose  the  mort- 
gage on  the  Connecticut  property,  according  to  the  laws  and  practice 
in  that  State.  The  defendant,  the  Benedict  &  Burnham  Manufacturing 
Company,  an  attaching  creditor,  appeared,  and  set  up  a  special  defence, 
alleging  the  foreclosure  and  proceedings  in  the  State  of  New  York. 
The  defence  was  held  insufficient,  on  the  ground  that  the  decree  and 
proceedings  had  thereunder  were  nugatory  as  to  the  real  estate  situate 
in  Connecticut.  In  my  judgment,  the  doctrine  of  this  case  presents 
the  better  view,  and  it  must  be  held  that  the  decree  of  the  Ohio  court 
did  not  merge  the  lien  of  the  mortgage  on  the  real  estate  in  Indiana. 

It  results  from  these  views  that  the  plea  is  insufficient,  and  it  is  so 
ordered,  with  leave  to  the  defendant  to  answer  within  thirty  days. 


YOUNG  V.  DREYFUS. 

Court  of  Appeal  of  Paris.    1885. 

[Reported  12  Clunet,  539.] 

A  COMPANY  was  formed  at  London  in  1864  under  the  name  of  "The 
Saint-Nazaire  Company,  Limited."  Its  principal  object  was  the  pur- 
chase and  resale  of  vast  tracts  of  land  situated  in  the  neighborhood  of 
the  city  of  Saint-Nazaire,  which  they  proposed  to  convert  into  docks, 
basins,  quays,  etc.  The  capital  of  the  company,  made  up  in  accordance 
with  the  English  law,  was  divided  into  shares  of  £20  each,  £5  payable 
upon  subscription,  and  the  balance,  as  the  company  should  need  it,  on 
call  by  the  board  of  management. 

After  various  vicissitudes,  especially  its  consolidation  with  a  com- 
pany formed  in  France  (the  "  Societe  de  Commerce  de  France"),  the 
English  Saint-Nazaire  Company  was  put  into  liquidation  in  England, 
and  Mr.  Young  was  appointed  official  liquidator  by  a  decree  of  the 
Court  of  Chancery. 

In  1877  Mr.  Young,  to  meet  the  liabilities  of  the  company,  called 
upon  the  shareholders  to  complete  the  payment  for  their  shares,  amount- 
ing to  £11  per  share.  Several  shareholders  not  having  satisfied  the 
call,  Mr.  Young  summoned  them  all  before  the  Court  of  Chancery,  and 
a  decree  of  the  Master  of  tiie  Rools  [Rolls?]  condemned  them  to  pay 
the  amounts  claimed. 

To  secure  the  execution  of  this  decree  against  the  French  share- 


380  YOUNG   V.   DREYFUS.  [CHAP.    III. 

holders,  Mr.  Young  brought  an  action  against  them,  in  his  own  name, 
before  the  Civil  Tribunal  of  the  Seine,  to  have  the  decree  of  the  Court 
of  Chancer}'  of  December  7,  1877,  declared  executory  in  France.  By 
additional  and  subsidiary  demands  alleged  to  the  lower  court,  Mr. 
Young  claimed  in  his  own  name,  in  case  the  tribunal  should  not  de- 
clare the  English  decree  executory,  that  each  of  the  defendants  be 
adjudged  to  pay  the  amounts  decreed  against  them  in  said  decree, 
which  represented  the  balances  unpaid  of  the  sums  subscribed.  On 
their  part,  the  shareholders  set  up  the  lack  of  jurisdiction  of  the  Eng- 
lish court,  and,  as  a  result,  the  nullitj-  of  the  decree;  alleging  also,  as 
to  the  additional  claims,  the  incompetence  of  the  Civil  Tribunal  of  the 
Seine,  because  "The  Saint-Nazaire  Compan}',  Limited"  was  a  com- 
mercial compan}'. 

On  August  24,  1881,  the  Civil  Tribunal  of  the  Seine  rejected  the 
liquidator's  claim.  On  his  appeal,  the  Court  of  Paris  affirmed  the 
judgment  in  the  following  terms  :  — 

The  Court.  As  to  the  jurisdiction  of  the  English  courts.  Article  14 
of  the  Civil  Code  authorizes  a  F'rench  plaintiff  to  cite  a  foreigner  before 
the  French  tribunals,  even  upon  obligations  contracted  in  foreign  coun- 
tries. The  object  of  this  provision,  containing  as  it  does  an  exception 
to  the  rule  actor  forum  seqidtur  rei,  is  to  assure  to  a  Frenchman  the 
benefit  of  the  national  courts.  It  follows,  a  fortiori,  that  a  defendant 
cannot,  contrary  to  the  rules  of  the  common  law,  be  withdrawn  from 
his  natural  judges.  Foreign  courts  are  therefore,  on  principle,  incom- 
petent as  concerns  him.  Nor  is  the  case  changed  by  the  terms  of 
Art.  59,  §  5,  of  the  Code*  of  Civil  Procedure,  giving  jurisdiction,  in 
the  case  of  partnerships,  to  the  court  of  the  place  where  the  principal 
office  is  established.  The  provisions  of  this  article  govern  the  com- 
petence of  French  courts  only  with  respect  to  persons  justiciable  in 
France ;  they  are  not  to  be  extended  further.  Though  the  rules  of 
competence  in  favor  of  French  citizens  are  not  rules  of  public  order, 
and  in  consequence  a  Frenchman  may  waive  the  benefit  of  them,  such 
waiver  of  a  right  cannot  be  presumed,  and  should  be  as  certain  and 
explicit  as  the  right  itself.  In  this  case  it  is  established  neither  by  the 
by-laws  of  the  English  compan}'^  nor  b}'  any  of  the  documents  produced. 
The  mere  fact  of  having  subscribed  to  or  bought  shares  in  a  foreign 
company  cannot  be  considered  as  conferring  jurisdiction. 


SECT.    III.]  PENNOYEK    V.    NEFF. 

SECTION  III. 

JURISDICTION    QUASI    IN   REM. 


381 


PENNOYER  V.  NEFF. 

Supreme  Court  of  the  United  States.     1878. 

[Reported  95  United  States,  714.] 

Field,  J.^  This  is  an  action  to  recover  the  possession  of  a  tract  of 
land,  of  the  alleged  value  of  $15,000,  situated  in  the  State  of  Oregon. 
The  plaintitr  asserts  title  to  the  premises  by  a  patent  of  the  United 
States  issued  to  him  in  1SG6,  under  the  act  of  Congress  of  September 
27,  1850,  usually  known  as  the  Donation  Law  of  Oregon.  The  defend- 
ant claims  to  have  acquired  the  premises  under  a  sheriffs  deed,  made 
upon  a  sale  of  the  property  on  execution  issued  upon  a  judgment  re- 
covered against  the  plaintiff  in  one  of  the  circuit  courts  of  the  State. 
The  case  turns  upon  the  validity  of  this  judgment. 

It  appears  from  the  record  that  the  judgment  was  rendered  in  Feb- 
ruary, 1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  S300,  including 
costs,  in  an  action  brought  by  him  upon  a  demand  for  services  as  an 
attorney  ;  that,  at  the  time  the  action  was  commenced  and  the  judgment 
rendered,  the  defendant  therein,  the  plaintitf  here,  was  a  non-resident 
of  the  State  ;  that  he  was  not  personally  served  with  process,  and  did 
not  appear  therein  ;  and  that  the  judgment  was  entered  upon  his  de- 
fault in  not  answering  the  complaint,  upon  a  constructive  service  of 
summons  by  publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action  is 
brought  against  a  non-resident  and  absent  defendant  who  has  property 
within  the  State.  It  also  provides,  where  the  action  is  for  the  recovery 
of  money  or  damages,  for  the  attachment  of  the  property  of  the  non- 
resident. And  it  also  declares  that  no  natural  person  is  subject  to  the 
jurisdiction  of  a  court  of  the  State,  "  unless  he  appear  in  the  court,  or 
be  found  within  the  State,  or  be  a  resident  thereof,  or  have  property 
therein,  and  in  the  last  case  only  to  the  extent  of  such  proi)erty  at  the 
time  the  jurisdiction  attached."  Construing  this  latter  provision  to 
mean,  that  in  an  action  for  money  or  dam. ages  where  a  defendant  does 
not  appear  in  the  court,  and  is  not  found  witliiu  the  State,  and  is  not  a 
resident  thereof,  but  has  property  therein,  the  jurisdiction  of  tlie  court 
extends  only  over  such  propeity,  the  declaration  expresses  a  principle 
of  general,  if  not  univ(!rsal,  law.  The  authority  of  every  tribunal  is 
necessarily  restricted  by  the  territorial  limits  of  the  State  in  whicli  it  is 

1  Arguments  of  counsel  and  part  of  tlie  lUs.scntiiij;  ojiiiiion  aru  oinittL-d.  —  En 


382  PENNOYER  V.    NEFF.  [CHAP.  III. 

established.  Any  attempt  to  exercise  authority  be3'ond  those  limits 
would  be  deemed  in  every  other  forum,  as  has  been  said  by  this  court, 
an  illegitimate  assumption  of  power,  and  be  resisted  as  mere  abuse. 
D'Arcy  v.  Ketchum  et  al.,  11  How.  165.  In  the  case  against  the  plain- 
tiff, the  property  here  in  controversy  sold  under  the  judgment  rendered 
was  not  attached,  nor  in  any  way  brought  under  the  jurisdiction  of  the 
court.  Its  first  connection  with  the  case  was  caused  by  a  levy  of  the 
execution.  It  was  not,  therefore,  disposed  of  pursuant  to  any  adjudi- 
cation, but  only  in  enforcement  of  a  personal  judgment,  having  no  rela- 
tion to  the  property,  rendered  against  a  non-resident  without  service  of 
process  upon  him  in  the  action,  or  his  appearance  therein.  The  court 
below  did  not  consider  that  an  attachment  of  the  property  was  essential 
to  its  jurisdiction  or  to  the  validity  of  the  sale,  but  held  that  the  judg- 
ment was  invalid  from  defects  in  the  affidavit  upon  which  the  order  of 
publication  was  obtained,  and  in  the  affidavit  by  which  the  publication 
was  proved. 

There  is  some  difference  of  opinion  among  the  members  of  this  court 
as  to  the  rulings  upon  these  alleged  defects.  The  majority  are  of 
opinion  that  inasmuch  as  the  statute  requires,  for  an  order  of  publica- 
tion, that  certain  facts  shall  appear  by  affidavit  to  the  satisfaction  of 
the  court  or  Judge,  defects  in  such  affidavit  can  only  be  taken  advan- 
tage of  on  appeal,  or  by  some  other  direct  proceeding,  and  cannot 
be  urged  to  impeach  the  judgment  collaterally.  The  majority  of  the 
court  are  also  of  opinion  that  the  provision  of  the  statute  requiring 
proof  of  the  publication  in  a  newspaper  to  be  made  by  the  "  affidavit 
of  the  printer,  or  his  foreman,  or  his  principal  clerk,"  is  satisfied  when 
the  affidavit  is  made  by  the  editor  of  the  paper.  The  term  "  printer," 
in  their  judgment,  is  there  used  not  to  indicate  the  person  who  sets  up 
the  type  —  he  does  not  usually  have  a  foreman  or  clerks ;  it  is  rather 
used  as  synonymous  with  publisher.  The  Supreme  Court  of  New  York 
so  held  in  one  case, — observing  that,  for  the  purpose  of  making  the 
required  proof,  publishers  were  "  within  the  spirit  of  the  statute." 
Bunce  v.  Reed,  16  Barb.  (N.  Y.)  350.  And,  following  this  ruling,  the 
Supreme  Court  of  California  held  that  an  aflJidavit  made  by  a  "pub- 
lisher and  proprietor"  was  sufficient.  Sharp  v.  Daugney,  33  Cal.  512. 
The  term  "editor,"  as  used  when  the  statute  of  New  York  was  passed, 
from  which  the  Oregon  law  is  borrowed,  usually  included  not  only  the 
person  who  wrote  or  selected  the  articles  for  publication,  but  the  person 
who  published  the  paper  and  put  it  into  circulation.  Webster,  in  an 
early  edition  of  his  Dictionary,  gives  as  one  of  the  definitions  of  an 
editor,  a  person  "who  superintends  the  pubhcation  of  a  newspaper." 
It  is  principally  since  that  time  that  the  business  of  an  editor  has  been 
separated  from  that  of  a  publisher  and  printer,  and  has  become  an 
independent  profession. 

If,  therefore,  we  were  confined  to  the  rulings  of  the  court  below  upon 
the  defects  in  the  affidavits  mentioned,  we  should  be  unable  to  uphold 
its  decision.     But  it  was  also  contended  in  that  court,  and  is  insisted 


SECT.    III.J  PEXNOYEK    V.    NEFF.  383 

upon  here,  that  the  judgment  in  the  State  court  against  the  plaintiff 
was  void  for  want  of  personal  service  of  process  on  him,  or  of  his  ap- 
pearance in  the  action  in  which  it  was  rendered,  and  tliat  the  premises 
in  controversy  could  not  be  subjected  to  the  payment  of  the  demand  of 
a  resident  creditor  except  by  a  proceeding  in  rem  ;  that  is,  by  a  direct 
proceeding  against  the  property  for  that  purpose.  If  these  positions 
are  sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity  of  that 
judgment  must  be  sustained,  notwithstanding  our  dissent  from  the 
reasons  upon  which  it  was  made.  And  that  they  are  sound  would  seem 
to  follow  from  two  well-establislied  principles  of  public  law  respecting 
the  jurisdiction  of  an  independent  State  over  persons  and  property. 
The  several  States  of  the  Union  are  not,  it  is  true,  in  every  respect 
independent,  many  of  the  rights  and  powers  which  originalh'  belonged 
to  them  being  now  vested  in  the  government  created  by  the  Consti- 
tution. But,  except  as  restrained  and  limited  b}'  that  instrument,  they 
possess  and  exercise  the  authority  of  independent  States,  and  the  prin- 
ciples of  public  law  to  which  we  have  referred  are  applicable  to  them. 
One  of  these  principles  is,  that  every  State  possesses  exclusive  juris- 
diction and  sovereignty  over  persons  and  property  within  its  territory. 
As  a  consequence  every  State  has  the  power  to  determine  for  itself  the 
civil  status  and  capacities  of  its  inhabitants ;  to  prescribe  the  subjects 
upon  which  they  may  contract,  the  forms  and  solemnities  with  which 
their  contracts  shall  be  executed,  the  rights  and  obligations  arising 
from  them,  and  the  mode  in  which  their  validity  shall  be  determined 
and  their  obligations  enforced  ;  and  also  to  regulate  the  manner  and 
conditions  upon  which  propert}'  situated  within  such  territor}',  both 
personal  and  real,  may  be  acquired,  enjoyed,  and  transferred.  The 
other  principle  of  public  law  referred  to  follows  from  the  one  men- 
tioned ;  that  is,  that  no  State  can  exercise  direct  jurisdiction  and  au- 
thority over  persons  or  property  without  its  territory.  Story,  Contl. 
Laws,  c.  2  ;  Wheat.  Int.  Law,  pt.  2,  c.  2.  The  several  States  are  of 
equal  dignity  and  authority,  and  the  independence  of  one  implies  the 
exclusion  of  power  from  all  others.  And  so  it  is  laid  down  by  jurists 
as  an  elementary  principle  that  the  laws  of  one  State  have  no  operation 
outside  of  its  territory  except  so  far  as  is  allowed  by  comity  ;  and  that 
no  tribunal  established  by  it  can  extend  its  process  beyond  that  terri- 
tory so  as  to  subject  either  persons  or  property  to  its  decisions.  "Any 
exertion  of  authority  of  this  sort  beyond  this  limit,"  says  Story,  "  is  a 
mere  nullity,  and  incapable  of  binding  such  persons  or  property  in  any 
other  tribunals."     Story,  Cond.  Laws,  sect.  539. 

But  as  contracts  made  in  one  State  may  be  enforceable  only  in  an- 
other State,  and  property  may  be  held  by  non-residents,  the  exercise  of 
the  jurisdiction  which  every  State  is  admitted  to  possess  over  persons 
and  properly  within  its  own  territory  will  often  alTect  persons  and 
property  without  it.  To  any  influence  exerted  in  tliis  way  by  a  State 
affecting  persons  resident  or  property  situated  elsewhere,  no  objection 
can  be  justly  taken  ;  whilst  any  direct  exertion  of  authority  upon  them. 


384  PENNOYER  V.    NEFF.  [CHAP.  III. 

in  an  attempt  to  give  exterritorial  operation  to  its  laws,  or  to  enforce 
an  exterritorial  jurisdiction  by  its  tribunals,  would  be  deemed  an  en- 
croachment upon  the  independence  of  the  State  in  which  the  persons 
are  domiciled  or  the  property  is  situated,  and  be  resisted  as  usurpation. 

Thus  the  State,  through  its  tribunals,  may  compel  persons  domiciled 
within  its  limits  to  execute,  in  pursuance  of  their  contracts  respecting 
property  elsewhere  situated,  instruments  in  such  form  and  with  such 
solemnities  as  to  transfer  the  title,  so  far  as  such  formalities  can  be 
complied  with  ;  and  the  exercise  of  this  jurisdiction  in  no  manner  in- 
terferes with  the  supreme  control  over  the  property  by  the  State  within 
which  it  is  situated.  Penn  v.  Lord  Baltimore,  1  Ves.  444;  Massie  v. 
Watts,  6  Cranch,  148;  Watkins  v.  Holman,  16  Pet.  25  ;  Corbett  i'. 
Nutt,  10  Wall.  464. 

So  the  State,  through  its  tribunals,  may  subject  propert}'  situated 
within  its  limits  owned  by  non-residents  to  the  payment  of  the  demand 
of  its  own  citizens  against  them  ;  and  the  exercise  of  this  jurisdiction 
in  no  respect  infringes  upon  the  sovereignty  of  the  State  where  the 
owners  are  domiciled.  Everj-  State  owes  protection  to  its  own  citizens  ; 
and  when  non-residents  deal  with  them,  it  is  a  legitimate  and  just  exer- 
cise of  authority  to  hold  and  appropriate  an}-  propert}'  owned  by  such 
non-residents  to  satisf}'  the  claims  of  its  citizens.  It  is  in  virtue  of  the 
State's  jurisdiction  over  the  property'  of  the  non-resident  situated  within 
its  limits  that  its  tribunals  can  inquire  into  that  non-resident's  obliga- 
tions to  its  own  citizens,  and  the  inquiry  can  then  be  carried  onl}'  to 
the  extent  necessary  to  control  the  disposition  of  the  property.  If  the 
non-resident  have  no  propert}'  in  the  State,  there  is  nothing  upon  which 
the  tribunals  can  adjudicate. 

These  views  are  not  new.  The}'  have  been  frequentl}'  expressed, 
with  more  or  less  distinctness,  in  opinions  of  eminent  judges,  and  have 
been  carried  into  adjudications  in  numerous  cases.  Thus,  in  Picquet  v. 
Swan,  5  Mason,  35,  Mr.  Justice  Stor}'  said  :  — 

"  Where  a  part}'  is  within  a  territory,  he  may  justly  be  subjected  to 
its  process,  and  bound  personally  by  the  judgment  pronounced  on  such 
process  against  him.  Where  he  is  not  within  such  territory,  and  is  not 
personally  subject  to  its  laws,  if,  on  account  of  his  supposed  or  actual 
property  being  within  the  territory,  process  by  the  local  laws  may,  by 
attachment,  go  to  compel  his  appearance,  and  for  his  default  to  appear 
judgment  may  be  pronounced  against  him,  such  a  judgment  must,  upon 
general  principles,  be  deemed  only  to  bind  him  to  the  extent  of  sucb 
property,  and  cannot  have  the  effect  of  a  conclusive  judgment  in  per- 
sonam^ for  the  plain  reason  that,  except  so  far  as  the  property  is  con- 
cerned, it  is  a  judgment  coram  7ion  judice." 

And  in  Boswell's  Lessee  v.  Otis,  9  How.  336,  where  the  title  of  the 
plaintiff  in  ejectment  was  acquired  on  a  sheriff's  sale,  under  a  money 
decree  rendered  upon  publication  of  notice  against  non-residents,  in  a 
suit  brought  to  enforce  a  contract  relating  to  land,  Mr.  Justice  McLean 
said  :  — 


SECT.    III.]  PENNOYER   V.   NEFF.  385 

"  Jurisdiction  is  acquired  in  one  of  two  modes:  first,  as  against  the 
person  of  tlie  defendant  by  the  service  of  process  ;  or,  secondly,  by  a 
procedure  against  tlie  property  of  the  defendant  within  the  jurisdiction 
of  the  court.  In  the  latter  case,  the  defendant  is  not  personally  bound 
by  the  judgment  beyond  the  property  in  question.  And  it  is  imma- 
terial whether  the  proceeding  against  the  property  be  by  an  attachment 
or  bill  in  chancery.     It  must  be  substantially  a  proceeding  in  rem" 

These  citations  are  not  made  as  authoritative  expositions  of  the  law  ; 
for  the  language  was  perhaps  not  essential  to  the  decision  of  the  cases 
in  which  it  was  used,  but  as  expressions  of  the  opinion  of  eminent 
jurists.  But  in  Cooper  v.  Reynolds,  reported  in  the  10th  of  Wallace, 
it  was  essential  to  the  disposition  of  the  case  to  declare  the  effect  of  a 
personal  action  against  an  absent  party,  without  the  jurisdiction  of  the 
court,  not  served  with  process  or  voluntarily  submitting  to  the  tribunal, 
when  it  was  sought  to  subject  his  property  to  the  payment  of  a  demand 
of  a  resident  complainant ;  and  in  the  opinion  there  delivered  we  have 
a  clear  statement  of  the  law  as  to  the  efficacy  of  such  actions,  and  the 
jurisdiction  of  the  court  over  tliem.  In  that  case,  the  action  was  for 
damages  for  alleged  false  imprisonment  of  the  plaintiff  ;  and  upon  his 
affidavit  that  the  defendants  had  fled  from  the  State,  or  had  absconded 
or  concealed  themselves  so  that  the  ordinary  process  of  law  could  not 
reach  them,  a  writ  of  attachment  was  sued  out  against  their  property. 
Publication  was  ordered  by  the  court,  giving  notice  to  them  to  appear  and 
plead,  answer  or  demur,  or  that  the  action  would  be  taken  as  confessed 
and  proceeded  in  ex  parte  as  to  them.  Publication  was  had  ;  but  they 
made  default,  and  judgment  was  entered  against  them,  and  the  attached 
property  was  sold  under  it.  The  purchaser  having  been  put  into  pos- 
session of  the  property,  the  original  owner  brought  ejectment  for  its 
recovery.  In  considering  the  character  of  the  proceeding,  the  court, 
speaking  through  Mr.  Justice  Miller,  said  :  — 

"  Its  essential  purpose  or  nature  is  to  establish,  by  the  judgment  of 
the  court,  a  demand  or  claim  against  the  defendant,  and  subject  his 
property  lying  within  the  territorial  jurisdiction  of  the  court  to  the  pay- 
ment of  that  demand.  But  the  plaintitf  is  met  at  the  commencement  of 
his  proceedings  by  the  fact  that  the  defendant  is  not  within  the  terri- 
torial jurisdiction,  and  cannot  be  served  with  any  process  by  which  he 
can  be  brought  personally  within  the  power  of  the  court.  For  this 
difficulty  the  statute  has  provided  a  remedy.  It  says  that,  upon  afli- 
davit  being  made  of  that  fact,  a  writ  of  attachment  may  be  issued  and 
levied  on  any  of  the  defendant's  property,  and  a  publication  may  be 
made  warning  him  to  appear,  and  that  thereafter  the  court  may  proceed 
in  the  case  whether  he  appears  or  not.  If  the  defendant  appears,  the 
cause  becomes  mainly  a  suit  ///  personam,  with  the  added  incident  that 
the  property  attached  remains  liable,  under  the  control  of  the  court,  to 
answer  to  any  demand  which  may  be  established  against  the  defendant 
by  the  final  judgment  of  the  court.    But  if  there  is  no  appearance  of  the 

defendant,  and  no  service  of  process  on  him,  the  case  becomes  in  its 

25 


386  PENNOYER   V.   NEFF.  [CHAP.    IIL 

essential  nature  a  proceeding  in  rem  ;  the  onl}'  effect  of  which  is  to  sub- 
ject the  property  attached  to  the  payment  of  the  demand  which  the  court 
may  find  to  be  due  to  the  plaintiff.  That  such  is  the  nature  of  this 
proceeding  in  this  latter  class  of  cases  is  clearly  evinced  by-  two  well- 
established  propositions.  First,  the  judgment  of  the  court,  though  in 
form  a  personal  judgment  against  the  defendant,  has  no  effect  beyond 
the  property  attached  in  that  suit.  No  general  execution  can  be  issued 
for  any  balance  unpaid  after  the  attached  property  is  exhausted.  No 
suit  can  be  maintained  on  such  a  judgment  in  the  same  court,  or  in 
any  other ;  nor  can  it  be  used  as  evidence  in  any  other  proceeding  not 
affecting  tlie  attached  property  ;  nor  could  the  costs  in  that  proceeding 
be  collected  of  defendant  out  of  any  other  property  than  that  attached 
in  the  suit.  Second,  the  court,  in  such  a  suit,  cannot  proceed  unless 
the  officer  finds  some  property  of  defendant  on  which  to  levy  the  writ 
of  attachment.  A  return  that  none  can  be  found  is  the  end  of  the  case, 
and  deprives  the  court  of  further  jurisdiction,  though  the  publication 
may  have  been  duly  made  and  proven  in  court." 

The  fact  that  the  defendants  in  that  case  had  fled  from  the  State,  or 
had  concealed  themselves,  so  as  not  to  be  reached  by  the  ordinary  pro- 
cess of  the  court,  and  were  not  non-residents,  was  not  made  a  point  in 
the  decision.  The  opinion  treated  them  as  being  without  the  territorial 
jurisdiction  of  the  court ;  and  the  grounds  and  extent  of  its  authority 
over  persons  and  property  thus  situated  were  considered,  when  they 
were  not  brought  within  its  jurisdiction  by  personal  service  or  voluntary 
appearance. 

The  writer  of  the  present  opinion  considered  that  some  of  the  objec- 
tions to  the  preliminary  proceedings  in  the  attachment  suit  were  well 
taken,  and  therefore  dissented  from  the  judgment  of  the  court ;  but  to 
the  doctrine  declared  in  the  above  citation  he  agreed,  and  he  may  add, 
that  it  received  the  approval  of  all  the  judges.  It  is  the  only  doctrine 
consistent  with  proper  protection  to  citizens  of  other  States.  If,  with- 
out personal  service,  judgments  in  personatn,  obtained  ex  parte  against 
non-residents  and  absent  parties,  upon  mere  publication  of  process, 
which,  in  the  great  majority  of  cases,  would  never  be  seen  by  the  parties 
interested,  could  be  upheld  and  enforced,  they  would  be  the  constant 
instruments  of  fraud  and  oppression.  Judgments  for  all  sorts  of  claims 
upon  contracts  and  for  torts,  real  or  pretended,  would  be  thus  obtained, 
under  which  property  would  be  seized,  when  the  evidence  of  the  trans- 
actions upon  which  they  were  founded,  if  they  ever  had  any  existence, 
had  perished. 

Substituted  service  by  publication,  or  in  any  other  authorized  form, 
may  be  sufficient  to  inform  parties  of  the  object  of  proceedings  taken 
where  property  is  once  brought  under  the  control  of  the  court  by  seizure 
or  some  equivalent  act.  The  law  assumes  that  property  is  always  in  the 
possession  of  its  owner,  in  person  or  by  agent ;  and  it  proceeds  upon  the 
theory  that  its  seizure  will  inform  him,  not  only  that  it  is  taken  into 
the  custody  of  the  court,  but  that  he  must  look  to  any  proceedings 


SECT.    III.]  PENNOYER    V.    NEFF. 


587 


authorized  by  law  upon  such  seizure  lor  its  condemnation  and  sale. 
Such  service  may  also  be  sufficient  in  cases  where  the  object  of  the 
action  is  to  reach  and  dispose  of  property  in  the  State,  or  of  some  in- 
terest therein,  by  enforcing  a  contract  or  a  lien  respecting  the  same,  or 
to  partition  it  among  ditterent  owners,  or,  when  the  public  is  a  party, 
to  condemn  and  appropriate  it  for  a  public  purpose.  In  other  words, 
such  service  may  answer  in  all  actions  which  are  substantially  proceed- 
ings in  rem.  But  where  the  entire  object  of  the  action  is  to  determine 
the  personal  rights  and  obligations  of  the  defendants,  that  is,  where  the 
suit  is  merely  in  personam,  constructive  service  in  this  form  upon  a 
non-resident  is  ineffectual  for  any  purpose.  Process  from  the  tribunals 
of  one  State  cannot  run  into  another  State,  and  summon  parties  there 
domiciled  to  leave  its  territory  and  respond  to  proceedings  against 
them.  Publication  of  process  or  notice  within  the  State  where  the  tri- 
bunal sits  cannot  create  any  greater  obligation  upon  the  non-resident 
to  appear.  Process  sent  to  him  out  of  the  State,  and  process  published 
within  it,  are  equally  unavailing  in  proceedings  to  establish  his  personal 
liability. 

The  want  of  authority  of  the  tribunals  of  a  State  to  adjudicate  upon 
the  obligations  of  non-residents,  where  they  have  no  property  within 
its  limits,  is  not  denied  by  the  court  below ;  but  the  position  is  assumed, 
that,  where  they  have  property  within  the  State,  it  is  immaterial  whether 
the  property  is  in  the  first  instance  brought  under  the  control  of  the 
court  by  attachment  or  some  other  equivalent  act,  and  afterwards  ap- 
plied by  its  judgment  to  the  satisfaction  of  demands  against  its  owner  ; 
or  such  demands  be  first  established  in  a  personal  action,  and  the  prop- 
erty of  the  non-resident  be  afterwards  seized  and  sold  on  execution. 
But  the  answer  to  this  position  has  already  been  given  in  the  statement, 
that  the  jurisdiction  of  the  court  to  inquire  into  and  determine  his  obli- 
gations at  all  is  only  incidental  to  its  jurisdiction  over  the  property. 
Its  jurisdiction  in  that  respect  cannot  be  made  to  depend  upon  facts  to 
be  ascertained  after  it  has  tried  the  cause  and  rendered  the  judgment. 
If  the  judgment  be  previously  void,  it  will  not  become  valid  by  the  sub- 
sequent discovery  of  property  of  the  defendant,  or  by  his  subsequent 
acquisition  of  it.  The  judgment,  if  void  when  rendered,  will  always 
remain  void  ;  it  cannot  occupy  the  doubtful  position  of  being  valid  if 
property  be  found,  and  void  if  there  be  none.  Even  if  the  position 
assumed  were  confined  to  cases  where  the  non-resident  defendant  pos- 
sessed property  in  the  State  at  the  commencement  of  the  action,  it 
would  still  make  the  validity  of  the  proceedings  and  judgment  depend 
upon  the  question  whether,  before  the  levy  of  the  execution,  the  de- 
fendant had  or  had  not  disposed  of  the  property.  If  before  the  levy 
the  property  should  l)e  sold,  then,  according  to  this  position,  the  judg- 
ment would  not  be  binding.  This  doctrine  would  introduce  a  new  ele- 
ment of  uncertainty  in  judicial  proceedings.  The  contrary  is  the  law. 
The  validity  of  every  judgment  depends  upon  the  jurisdiction  of  the 
court  before  it  is  rendered,  not  upon  what  may  occur  subsequently.     In 


388  PENNOYER   V.    NEFF.  [CHAP.    III. 

Webster  v.  Reid,  reported  in  11th  of  Howard,  the  plaintiff  claimed 
title  to  land  sold  under  judgments  recovered  in  suits  brought  in  a 
territorial  coui't  of  Iowa,  upon  publication  of  notice  under  a  law  of  the 
territory,  without  service  of  process  ;  and  the  court  said  :  — 

"These  suits  were  not  a  proceeding  in  rem  against  the  land,  but 
were  in  personam  against  the  owners  of  it.  Whether  they  all  resided 
within  the  territor}-  or  not  does  not  appear,  nor  is  it  a  matter  of  an^' 
importance.  No  person  is  required  to  answer  in  a  suit  on  whom  pro- 
cess has  not  been  served,  or  whose  property  has  not  been  attached.  In 
this  case,  there  was  no  personal  notice,  nor  an  attachment  or  other  pro- 
ceeding against  the  land,  until  after  the  judgments.  The  judgments, 
therefore,  are  nullities,  and  did  not  authorize  the  executions  on  which 
the  land  was  sold." 

The  force  and  effect  of  judgments  rendered  against  non-residents 
without  personal  service  of  process  upon  them,  or  their  voluntary'  ap- 
pearance, have  been  the  subject  of  frequent  consideration  in  the  courts 
of  the  United  States  and  of  the  several  States,  as  attempts  have  been 
made  to  enforce  such  judgments  in  States  other  than  those  in  which 
they  were  rendered,  under  the  provision  of  the  Constitution  requiring 
that  "  full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  ever}'  other  State  ;  "  and  the 
act  of  Congress  providing  for  the  mode  of  authenticating  such  acts, 
records,  and  proceedings,  and  declaring  that,  when  thus  authenticated, 
"  they  shall  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or  usage  in  the  courts  of 
the  State  from  which  the}'  are  or  shall  be  taken."  In  the  earher  cases, 
it  was  supposed  that  the  act  gave  to  all  judgments  the  same  effect  in 
other  States  which  they  had  by  law  in  the  State  where  rendered.  But 
this  view  was  afterwards  qualified  so  as  to  make  the  act  applicable  only 
when  the  court  rendering  the  judgment  had  jurisdiction  of  the  parties 
and  of  the  subject-matter,  and  not  to  preclude  an  inquiiy  into  the  juris- 
diction of  the  court  in  which  the  judgment  was  rendered,  or  the  right 
of  the  State  itself  to  exercise  authority  over  the  person  or  the  subject- 
matter.  M'Elmoyle  v.  Cohen,  13  Pet.  312.  In  the  case  of  D'Arcy  v. 
Ketchum,  reported  in  the  11th  of  Howard,  this  view  is  stated  with  great 
clearness.  That  was  an  action  in  the  Circuit  Court  of  the  United  States 
for  Louisiana,  brought  upon  a  judgment  rendered  in  New  York  under  a 
State  statute,  against  two  joint  debtors,  only  one  of  whom  had  been 
served  with  process,  the  other  being  a  non-resident  of  the  State.  The 
Circuit  Court  held  the  judgment  conclusive  and  binding  upon  the  non- 
resident not  served  with  process  ;  but  this  court  reversed  its  decision, 
observing,  that  it  was  a  familiar  rule  that  countries  foreign  to  our  own 
.disregarded  a  judgment  merely  against  the  person,  where  the  defendant 
liad  not  been  served  with  process  nor  had  a  day  in  court ;  that  national 
comity  was  never  thus  extended  ;  that  the  proceeding  was  deemed  an 
illegitimate  assumption  of  power,  and  resisted  as  mere  abuse  ;  that  no 
faith  and  credit  or  force  and  effect  had  been  given  to  such  judgments 


SECT.    III.]  PENXOYER    V.    NEFF.  389 

by  an}-  State  of  the  Union,  so  far  as  known ;  and  that  the  State  courts 
had  uniformly,  and  in  many  instances,  held  them  to  be  void.  "The 
international  law,"  said  the  court,  "as  it  existed  among  the  States  in 
1790,  was,  that  a  judgment  rendered  in  one  State,  assuming  to  bind  the 
person  of  a  citizen  of  another,  was  void  within  the  foreign  State  when 
the  defendant  had  not  been  served  with  process  or  voluntarily  made 
defence ;  because  neither  the  legislative  jurisdiction  nor  that  of  courts 
of  justice  had  binding  force."  And  the  court  held  that  the  act  of 
Congress  did  not  intend  to  declare  a  new  rule,  or  to  embrace  judicial 
records  of  this  description.  As  was  stated  in  a  subsequent  case,  the 
doctrine  of  this  court  is,  that  tlie  act  "  was  not  designed  to  displace 
that  principle  of  natural  justice  which  requires  a  person  to  have  notice 
of  a  suit  before  he  can  be  conclusively  bound  by  its  result,  nor  those 
rules  of  public  law  which  protect  persons  and  property  within  one  State 
from  the  exercise  of  jurisdiction  over  them  by  another."  The  Lafayette 
Insurance  Co.  v.  French  tt  ciL,  18  How.  404. 

This  whole  subject  has  been  very  fully  and  learnedly  considered  in 
the  recent  case  of  Thompson  v.  Whitman,  18  Wall.  457,  where  all  the 
authorities  are  carefully  reviewed  and  distinguished  ;   and  the  conclu- 
sion above  stated  is  not  only  reaffirmed,  but  the  doctrine  is  asserted, 
that  the  record  of  a  judgment  rendered  in  another  State  may  be  con- 
tradicted as  to  the  facts  necessary  to  give  the  court  jurisdiction  against 
its  recital  of  their  existence.     In  all  the  cases  brought  in  the  State  and 
Federal  courts,  where  attempts  have  been  made  under  the  act  of  Con- 
gress to  ,give  effect  in  one  State  to  personal  judgments  rendered  in 
another  State  against  non-residents,  without  service  upon  them,  or  upon 
substituted  service  by  publication,  or  in  some  other  form,  it  has  been 
held,  without  an  exception,  so  far  as  we  are  aware,  that  such  judgments 
were  without  any  binding  force,  except  as  to  property,  or  interests  in 
property,  within  the  State,  to  reach  and  affect  which  was  the  object  of 
the  action  in  which  the  judgment  was  rendered,  and  which  property 
was  brought  under  control  of  the  court  in  connection  with  the  process 
against  the  person.     The  proceeding  in  such  cases,  though  in  the  form 
of  a  personal  action,  Ijas  been  uniformly  treated,  where  service  was  not 
obtained,  and  the  party  did   not  voluntarily  appear,  as  effectual  and 
binding  merely  as  a  proceeding  in  rem.  and  as  having  no  operation 
beyond  the  disposition  of  the  property,  or  some  interest  therein.     And 
the  reason  assigned  for  this  conclusion  has  been  that  which  we  have 
already  stated,  that  the  tribunals  of  one  State  have  no  jurisdiction  over 
persons  beyond  its  limits,  and  can  inquire  only  into  their  obligations  to 
its  citizens  when  exercising  its  conceded  jurisdiction  over  their  property 
within  its  limits.     In  Bissell  v.  Briggs,  decided  by  the  Supreme  Court 
of  Massachusetts  as  early  as  181.3,  the  law  is  stated  substantially  in 
conformity  with  these  views.      In  that  case,  the  court  considered  at 
length  the  effect  of  the  constitutional  provision,  and  the  act  of  Congress 
mentioned  ;  and  after  stating  that,  in  order  to  entitle  the  judgment  ren- 
dered in  any  court  of  the  United  States  to  the  full  faith  and  credit 


390  PENNOYER  V.   NEFF.  [CHAP.  III. 

mentioned  in  the  Constitution,  the  court  must  have  had  jurisdiction  not 
only  of  the  cause,  but  of  the  parties,  it  proceeded  to  iUustrate  its  posi- 
tion by  observing,  that,  where  a  debtor  living  in  one  State  has  goods, 
effects,  and  credits  in  another,  his  creditor  living  in  the  other  State 
may  have  the  property  attached  pursuant  to  its  laws,  and,  on  recovering 
judgment,  have  the  property  applied  to  its  satisfaction  ;  and  that  the 
party  in  whose  hands  the  property  was  would  be  protected  by  the  judg- 
ment in  the  State  of  the  debtor  against  a  suit  for  it,  because  the  court 
rendering  the  judgment  had  jurisdiction  to  that  extent;  but  that  if  the 
property" attached  were  insufficient  to  satisfy  the  judgment,  and  the 
creditor  should  sue  on  that  judgment  in  the  State  of  the  debtor,  he 
would  fail,  because  the  defendant  was  not  amenable  to  the  court  ren- 
dering the  judgment.  In  other  words,  it  was  held  that  over  the  prop- 
erty within  the  State  the  court  had  jurisdiction  by  the  attachment,  but 
had  none  over  his  person  ;  and  that  any  determination  of  his  liability, 
except  so  far  as  was  necessary  for  the  disposition  of  the  property,  was 
invalid.^ 

In  Kilbourn  v.  Woodworth,  5  Johns.  (N.  Y.)  37,  an  action  of  debt 
was  brought  in  New  York  upon  a  personal  judgment  recovered  iu 
Massachusetts.  The  defendant  in  that  judgment  was  not  served  with 
process  ;  and  the  suit  was  commenced  by  the  attachment  of  a  bedstead 
belonging  to  the  defendant,  accompanied  with  a  summons  to  appear, 
served  on  his  wife  after  she  had  left  her  place  in  Massachusetts.  The 
court  held  that  the  attachment  bound  only  the  property  attached  as  a 
proceeding  in  rem,  and  that  it  could  not  bind  the  defendant,  observing, 
that  to  bind  a  defendant  personally,  when  he  was  never  personally 
summoned  or  had  notice  of  the  proceeding,  would  be  contrary  to  tlie 
first  principles  of  justice,  repeating  the  language  in  that  respect  of 
Chief  Justice  De  Grey,  used  in  the  case  of  Fisher  v.  Lane,  3  Wils.  297, 
in  1772.  See  also  Borden  v.  Fitch,  15  Johns.  (N.  Y.)  121,  and  the 
cases  there  cited,  and  Harris  v.  Hardeman  et  al,  14  How.  334.  To  the 
same  purport  decisions  are  found  in  all  the  State  courts.  In  sevetiil 
of  the  cases,  the  decision  has  been  accompanied  with  the  observation 
that  a  personal  judgment  thus  recovered  has  no  binding  force  without 
the  State  in  which  it  is  rendered,  implying  that  in  such  State  it  may  be 
valid  and  binding.  But  if  the  court  has  no  jurisdiction  over  the  person 
of  the  defendant  by  reason  of  his  non-residence,  and,  consequently,  no 
authority  to  pass  upon  his  personal  rights  and  obligations  ;  if  the  whole 
proceeding,  without  service  upon  him  or  his  appearance,  is  coram  non 
judice  and  void  ;  if  to  hold  a  defendant  bound  by  such  a  judgment  is 
contrary  to  the  first  principles  of  justice,  — it  is  difficult  to  see  how  the 
judgment  can  legitimately  have  any  force  within  the  State.  The  lan- 
guage used  can  be  justified  only  on  the  ground  that  there  was  no  mode 
of  directly  reviewing  such  judgment  or  impeaching  its  validity  within 

1  Ace.  Freeman  v.  Alderson,  119  U.  S.  185  ;  McVicar  v.  Beedy,  31  Me.  314  :  Eliot 
V.  McCormick,  144  Mass.  10  ;  Arndt  v.  Arndt,  15  Ohio,  33  ;  Jones  v.  Spencer,  15  Wis. 
583.     See  Melhop  v.  Doane,  31  la.  397-— Ed. 


SECT.    III.]  PENNOYER    V.    NEFF.  391 

the  State  where  rendered  ;  and  that,  therefore,  it  could  be  called  in 
question  only  when  its  enforcement  was  elsewhere  attempted.  In  later 
cases,  this  language  is  repeated  with  less  frequency  than  formerl}",  it 
beginning  to  be  considered,  as  it  always  ought  to  have  been,  that  a 
judgment  which  can  be  treated  in  any  State  of  this  Union  as  contrary' 
to  the  first  principles  of  justice,  and  as  an  absolute  nullit}-,  because 
rendered  without  any  jurisdiction  of  the  tribunal  over  the  part}',  is 
not  entitled  to  any  respect  in  the  State  where  rendered.  Smith  v. 
McCutchen,  38  Mo.  415;  Darrance  v.  Preston,  18  Iowa,  396;  Hakes 
c.  Shupe,  27  id.  465  ;  Mitchell's  Administrator  v.  Gra}',  18  Ind.  123. 

Be  that  as  it  may,  the  courts  of  the  United  States  are  not  required 
to  give  effect  to  judgments  of  this  character  when  any  right  is  claimed 
under  them.  Whilst  they  are  not  foreign  tribunals  in  their  relations  to 
the  State  courts,  they  are  tribunals  of  a  different  sovereignty,  exer- 
cising a  distinct  and  independent  jurisdiction,  and  are  bound  to  give  to 
the  judgments  of  the  State  courts  only  the  same  faith  and  credit  which 
the  courts  of  another  State  are  bound  to  give  to  them. 

Since  the  adoption  of  the  Fourteenth  Amendment  to  the  Federal 
Constitution,  the  validity  of  such  judgments  ma}'  be  directly  questioned, 
and  their  enforcement  in  the  State  resisted,  on  the  ground  that  pro- 
ceedings in  a  court  of  justice  to  determine  the  personal  rights  and 
obligations  of  parties  over  whom  that  court  has  no  jurisdiction  do  not 
constitute  due  process  of  law.  Whatever  difficult}'  may  be  experienced 
in  giving  to  those  terms  a  definition  which  will  embrace  every  permis- 
sil)!e  exertion  of  power  affecting  private  rights,  and  exclude  such  as  is 
forbidden,  there  can  be  no  doubt  of  their  meaning  when  applied  to 
judicial  proceedings.  Thej'  then  mean  a  course  of  legal  proceedings 
according  to  those  rules  and  principles  which  have  been  established 
in  our  systems  of  jurisprudence  for  the  protection  and  enforcement  of 
private  rights.  To  give  such  proceedings  an}'  validity,  there  must 
be  a  tribunal  competent  by  its  constitution  —  that  is,  by  the  law  of  its 
creation  —  to  pass  upon  the  subject-matter  of  the  suit ;  and  if  that 
involves  merely  a  determination  of  the  personal  liability  of  the  defend- 
ant, he  must  be  brought  within  its  jurisdiction  by  service  of  process 
within  the  State,  or  his  voluntary  appearance. 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff,  and 
cases  in  which  that  mode  of  service  may  be  considered  to  have  been 
assented  to  in  advance,  as  hereinafter  mentioned,  the  substituted  ser- 
vice of  process  by  pul)lication,  allowed  by  the  law  of  Oregon  and  by 
similar  laws  in  other  States,  where  actions  are  brought  against  non- 
residents, is  effectual  only  where,  in  connection  with  process  against 
the  person  for  commencing  the  action,  property  in  the  State  is  brought 
under  the  control  of  the  court,  and  subjected  to  its  disposition  by  pro- 
cess adapted  to  that  purpose,  or  where  tlie  judgment  is  sought  as  a 
moans  of  reaching  sucli  property  or  affecting  some  interest  therein  ;  in 
other  words,  wliere  tlie  action  is  in  the  nature  of  a  proceeding  in  ri'Di. 
As  stated  l)v  Coolev  in  liis  Ti'eatise  on  Constitutional  Limitations,  405, 


392  PENNOYER  V.    NEFF.  [CHAP.  III. 

for  any  other  purpose  than  to  subject  the  property  of  a  non-resident  to 
valid  claims  against  him  in  the  State,  "due  process  of  law  would  re- 
quire appearance  or  personal  service  before  the  defendant  could  be 
personally  bound  by  any  judgment  rendered." 

It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem  is  one  taken 
directly  against  property,  and  has  for  its  object  the  disposition  of  the 
property,  without  reference  to  the  title  of  individual  claimants  ;  but, 
in  a  larger  and  more  general  sense,  the  terms  are  applied  to  actions 
between  parties,  where  the  direct  object  is  to  reach  and  dispose  of 
property  owned  by  them,  or  of  some  interest  therein.  Such  are  cases 
commenced  by  attachment  against  the  property  of  debtors,  or  insti- 
tuted to  partition  real  estate,  foreclose  a  mortgage,  or  enforce  a  lien. 
So  far  as  they  affect  property  in  the  State,  they  are  substantially  pro- 
ceedino-s  in.  rem  in  the  broader  sense  which  we  have  mentioned. 

It  is  hardly  necessary  to  observe,  that  in  all  we  have  said  we  have 
had  reference  to  proceedings  in  courts  of  first  instance,  and  to  their 
jurisdiction,  and  not  to  proceedings  in  an  appellate  tribunal  to  review 
the  action  of  such  courts.  The  latter  may  be  taken  upon  such  notice, 
personal  or  constructive,  as  the  State  creating  the  tribunal  may  provide. 
They  are  considered  as  rather  a  continuation  of  the  original  litigation 
than  the  commencement  of  a  new  action.  Nations  et  al.  v.  Johnson 
et  al.,  24  How.  195. 

It  follows  from  the  views  expressed  that  the  personal  judgment  re- 
covered in  the  State  court  of  Oregon  against  the  plaintiff  herein,  then 
a  non-resident  of  the  State,  was  without  any  validity,  and  did  not  au- 
thorize a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this  opinion, 
it  is  proper  to  observe  that  we  do  not  mean  to  assert,  by  anything  we 
have  said,  that  a  State  may  not  authorize  proceedings  to  determine  the 
status  of  one  of  its  citizens  towards  a  non-resident,  which  would  be 
binding  within  the  State,  though  made  without  service  of  process  or 
personal  notice  to  the  non-resident.  The  jurisdiction  which  every  State 
possesses  to  determine  the  civil  status  and  capacities  of  all  its  in- 
habitants involves  authority  to  prescribe  the  conditions  on  which  pro- 
ceedings affecting  them  may  be  commenced  and  carried  on  within  its 
territory.  The  State,  for  example,  has  absolute  right  to  prescribe  the 
conditions  upon  which  the  marriage  relation  between  its  own  citizens 
shall  be  created,  and  the  causes  for  which  it  may  be  dissolved.  One 
of  the  parties  guilty  of  acts  for  which,  by  the  law  of  the  State,  a  disso- 
lution may  be  granted,  may  have  removed  to  a  State  where  no  dissolu- 
tion is  permitted.  The  complaining  party  would,  therefore,  fail  if  a 
divorce  were  sought  in  the  State  of  the  defendant ;  and  if  application 
could  not  be  made  to  the  tribunals  of  the  complainant's  domicile  in  such 
case,  and  proceedings  be  there  instituted  without  personal  service  of 
process  or  personal  notice  to  the  offending  party,  the  injured  citizen 
would  be  without  redress.     Bish.  Marr.  and  Div.,  sect.  156. 

Neither  do  we  mean  to  assert  that  a  State  may  not  require  a  non- 


SECT.    III.]  PENNOYER   V.    NEFF.  393 

resident  enteriug  into  a  partnership  or  association  within  its  limits,  or 
making  contracts  enforceable  there,  to  appoint  an  agent  or  representa- 
tive in  the  State  to  receive  service  of  process  and  notice  in  legal  pro- 
ceedings instituted  with  respect  to  such  partnership,  association,  or 
contracts,  or  to  designate  a  place  where  such  service  may  be  made  and 
notice  given,  and  provide,  upon  their  failure,  to  make  such  appointment 
or  to  designate  such  place  that  service  may  be  made  upon  a  public 
officer  designated  for  that  purpose,  or  in  some  other  prescribed  way, 
and  that  judgments  rendered  upon  such  service  may  not  be  binding 
upon  the  non-residents  both  within  and  without  the  State.  As  was 
said  by  the  Court  of  Exchequer  in  Vallee  v.  Duraergue,  4  Exch.  290, 
"It  is  not  contrary  to  natural  justice  that  a  man  who  has  agreed  to 
receive  a  particular  mode  of  notification  of  legal  proceedings  should  be 
bound  by  a  judgment  in  which  that  particular  mode  of  notification  has 
been  followed,  even  though  he  may  not  have  actual  notice  of  them." 
See  also  The  Lafayette  Insurance  Co.  r.  French  et  al.,  18  How.  404, 
and  Gillespie  v.  Commercial  Mutual  Marine  Insurance  Co.,  12  Gray 
(Mass.),  201.  Nor  do  we  doubt  that  a  State,  on  creating  corporations 
or  other  institutions  for  pecuniary  or  charitable  purposes,  may  provide 
a  mode  in  which  their  conduct  may  be  investigated,  their  obligations 
enforced,  or  their  charters  revoked,  which  shall  require  other  than  per- 
sonal service  upon  their  officers  or  members.  Parties  becoming  mem- 
bers of  such  corporations  or  institutions  would  hold  their  interest 
subject  to  the  conditions  prescribed  by  law.  Copin  v.  Adamson, 
Law  Rep.  9  Ex.  345. 

In  the  present  case  there  is  no  feature  of  this  kind,  and,  conse- 
quently, no  consideration  of  what  would  be  the  effect  of  such  legislation 
in  enforcing  the  contract  of  a  non-resident  can  arise.  The  question 
here  respects  only  the  validity  of  a  money  judgment  rendered  in  one 
State,  in  an  action  upon  a  simple  contract  against  the  resident  of 
another,  without  service  of  process  upon  him,  or  his  appearance 
therein.  Judgment  affirmed. 

Hunt,  J.,  dissenting.  I  am  compelled  to  dissent  from  the  opinion 
and  judgment  of  the  court,  and,  deeming  the  question  involved  to  be 
important,  I  take  leave  to  record  my  views  upon  it.   .   .   . 

It  is  said  that  the  case  where  a  preliminary  seizure  has  been  made, 
and  jurisdiction  thereby  conferred,  differs  from  that  where  the  property 
is  seized  at  the  end  of  the  action,  in  this:  In  the  first  case,  the  prop- 
erty is  supposed  to  be  so  near  to  its  owner,  that,  if  seizure  is  made  of 
it,  he  will  be  aware  of  the  fact,  and  have  his  oi)portunity  to  defend,  and 
jurisdiction  of  the  person  is  thus  ol)tained.  This,  however,  is  matter 
of  discretion  and  of  judgment  only.  Such  seizure  is  not  in  itself  notice 
to  the  defendant,  and  it  is  not  certain  that  he  will  by  that  means  re- 
ceive notice.  Adopted  as  a  means  of  communicating  it,  and  altiiouo-h 
a  very  good  means,  it  is  not  the  only  one,  nor  necessarilv  l)ettcr  than  a 
publication  of  the  pendency  of  the  suit,  made  with  an  honest  intention 


394  WOODEUTF   V.   TAYLOR.  [^^HAP.   III. 

to  reach  the  debtor.  Who  shall  assume  to  say  to  the  legislature,  that  if 
it  authorizes  a  particular  mode  of  giving  notice  to  a  debtor,  its  action 
may  be  sustained,  but  if  it  adopts  any  or  all  others,  its  action  is  uncon- 
stitutional and  void?  The  rule  is  universal,  that  modes,  means,  ques- 
tions of  expediency  or  necessity,  are  exclusively  within  the  judgment  of 
the  legislature,  and  that  the  judiciary  cannot  review  them.  This  has  been 
so  heTd  in  relation  to  a  bank  of  the  United  States,  to  the  legal-tender 
act,  and  to  cases  arising  under  other  provisions  of  the  Constitution. 
In  Jarvis  v.  Barrett,  14  Wis.  591,  such  is  the  holding.     The  court 

say :  — 

"  The  essential  fact  on  which  the  publication  is  made  to  depend  is 
property  of  the  defendant  in  the  State,  and  not  whether  it  has  been 
attached.  .  .  .  There  is  no  magic  about  the  writ  [of  attachment] 
which  should  make  it  the  exclusive  remedy.  The  same  legislative 
power  which  devised  it  can  devise  some  other,  and  declare  that  it  shall 
have  the  same  force  and  effect.  The  particular  means  to  be  used  are 
always  within  the  control  of  the  legislature,  so  that  the  end  be  not 
beyond  the  scope  of  legislative  power." 

If  the  legislature  shall  think  that  publication  and  deposit  in  the  post- 
office  are  likely  to  give  the  notice,  there  seems  to  be  nothing  in  the 
nature  of  things  to  prevent  their  adoption  in  lieu  of  the  attachment. 
The  point  of  power  cannot  be  thus  controlled. 

That  a  State  can  subject  land  within  its  limits  belonging  to  non- 
resident owners  to  debts  due  to  its  own  citizens  as  it  can  legislate  upon 
all  other  local  matters  ;  that  it  can  prescribe  the  mode  and  process  by 
which  it  is  to  be  reached,  —  seems  to  me  very  plain. 

I  am  not  willing  to  declare  that  a  sovereign  State  cannot  subject  the 
land  within  its  limits  to  the  payment  of  debts  due  to  its  citizens,  or 
that  the  power  to  do  so  depends  upon  the  fact  whether  its  statute  shall 
authorize  the  property  to  be  levied  upon  at  the  commencement  of  the 
suit  or  at  its  termination.  This  is  a  matter  of  detail ;  and  I  am  of 
opinion  that  if  reasonable  notice  be  given,  with  an  opportunity  to 
defend  when  appearance  is  made,  the  question  of  power  will  be  fully 
satisfied. 


WOODRUFF  V.    TAYLOR. 
Supreme  Court  of  Vermont.     1847. 

[Reported  20  Vermont,  65.] 

Trespass  for  taking  certain  personal  property.  The  defendant 
pleaded  the  general  issue,  and  also  pleaded  two  pleas  in  bar;  which 
were,  in  substance,  that  he  commenced  a  suit  against  one  Phelps 
Smith  in  the  Court  of  King's  Bench  in  the  District  of  Montreal,  in 
Lower  Canada,  and  caused  his  process  to  be  served  by  arresting  the 


SECT.    III.]  WOODRUFF   V.   TAYLOR.  395 

body  of  Smith;  that  in  October,  1842,  he  recovered  judgment  against 
Smith,  in  the  suit  for  £'2Q>  lbs.  9f/.,  debt,  and  £56  4s.  2rf.,  costs;  that 
in  June,  1843,  he  took  out  a  writ  of  fieri  facias,  upon  the  judgment, 
against  the  goods  of  Smith,  and  placed  the  same  in  the  hands  of  the 
sheriff's  bailiff  for  service;  that  on  the  loth  of  June,  1843,  the  goods 
described  in  the  plaintiff's  declaration    being   in  the  possession  of 
Smith  at  Staubridge  in  Lower  Canada,  the  defendant  turned  them 
out  to  the  bailiff,  in  the  presence  of  one  Hoyle,  Becors,  and  the  bailiff 
levied  on  the  same  as  the  property  of  Smith;  that,  after  giving  public 
notice  of  the  time  and  place  of  sale,  at  the  doors  of  two  churches, 
on  Sunday,  June  18,  and  by  posting  up  notices  of  the  sale  at  the 
doors  of  the  churches,  the  bailiff,  on  the  26th  of  June,  sold  the  prop- 
erty, in  the  presence  of  the  said  Recors  and  others,  to  the  highest 
bidder  for  £32   Is.   ScL;   that  at  the  October  Term  of  the  Court  of 
King's  Bench  the  sheriff  returned  they?. /a.  into  court,  together  with 
the  money  received  thereon,   excepting  £8   2s.    Id.  for  the   bailiff's 
costs;  that  then  one  Johnson  appeared  in  court  and  claimed  to  be  a 
creditor  of  Smith  and  demanded  a  ratable  division,  with  the  other 
creditors  of  Smith,  of  the  money  paid  into  court,  that  thereupon  the 
court  ordered  the  money  in  court  to  be  distributed  as  follows,  —  to 
the  crier  and  tipstaff  £5  Is.  6tZ.,  to  Taylor,  the  plaintiff  in  that  suit 
and   defendant  here,  £11   5s.  5(i.,  and   to  Johnson   £7  lis.   Id., — 
being  the  whole  of  the  proceeds  of  the  sale,  that  had  been  paid  into 
court;  and  that  the  said  judgment  still  remains  in  full  force.     And 
the  defendant  averred  that  during  the  time  of  all  these  proceedings, 
and  until  the  time  of  pleading,  there  was  a  custom  and  law  of  the 
said   province  of   Lower  Canada,  that  the  proceeds  of  the  sale  of 
goods  so  levied  upon  should  be  distributed,   in  manner   aforesaid, 
among  creditors  appearing  in  court  and  claiming  distribution,  and 
farther,  that  by  the  custom  and  law  of  said  province  all  persons  hav- 
ing claim  in  any  way  or  manner  to  the  property  so  levied  upon  and 
sold  on  execution,  are  permitted  to  enter  their  appearance  in  court, 
when  the  proceeds  of  the  sale  are  returned,  "and  if  any  person  hav- 
ing such  claim,  neglect  to  enter  his  said  appearance  and  make  and 
prosecute  his  said  claim,  judgment  of  distribution  is  to  be  made  by 
the  court  of  the  money  so  paid  in,  in  manner  and  form  aforesaid, 
and  the  said  judgment  for  debt,  or  damages,  and  costs  and  the  final 
distribution,  as  aforesaid,  is  conclusive,  both  as  to  the  title  of  said 
goods  and  the  amount  of  said  damages  and  costs,  and  that  the  same 
is  a  bar,  against  all  persons,  to  any  and  all  actions  founded  upon 
any  title,  interest,  claim,  or  possession  in  or  to  such  goods."     To 
this  plea  the  plaintiff  replied,  alleging  that  the  property  in  the  goods 
was  in  himself,  and  not  in  Phelps  Smith,  and  averring  that,  during 
all  the  period  of  said  proce(Mlings,  he  was  a  citizen  and  resident  of 
the  United  States,  and  not  a  resident  or  citizen  of  Canada,  nor  sub- 
ject to  the  laws  of  that  province,  and  that  he  had  no  notice  of  such 
proceedings,  or  any  of  them.     To  this  replication  the  defendant  de- 


396  WOODRUFF   V.    TAYLOR.  [CHAP.    III. 

rnurred.     The  county  court  adjudged  the  replication  insufficient,  and 
rendered  judgment  for  the  defendant.     Exceptions  by  plaintiff.  ^ 

Hall,  J.  A  second  argument  having  been  directed  in  this  case, 
it  has  perhaps  assumed  an  importance  in  the  eyes  of  counsel,  which 
its  intrinsic  difficulties  may  not  seem  to  warrant;  but  which  may, 
nevertheless,  justify  a  more  extended  opinion  than  would  otherwise 
have  been  deemed  necessary. 

The  question  raised  by  the  pleadings  is,  what  is  to  be  the  effect 
of  the  proceedings  in  the  King's  Bench  in  Canada  upon  one  not  per- 
sonally amenable  to  its  tribunal,  —  when  those  proceedings  are  used 
here,  in  another  and  foreign  jurisdiction?  It  is  insisted,  in  behalf 
of  the  defendant,  that  the  record  pleaded,  in  connection  with  the 
custom  and  law  of  Canada  set  forth  in  the  plea,  is  to  be  considered 
as  conclusive  evidence,  that  the  matter  now  in  controversy  between 
the  plaintiff  and  defendant  has  been  adjudicated  by  a  competent 
tribunal,  and  that  therefore  the  plea  is  a  good  bar  to  the  action. 
This  renders  it  necessary  to  inquire  into  the  nature  of  those  pro- 
ceedings, in  reference  to  their  sufficiency  to  constitute  a  record  of 
estoppel. 

Judgments,  in  regard  to  their  conclusive  effects  as  estoppels,  are 
of  two  classes;  —  judgments  m  j^ersoninn  and  judgments  in  rem. 
The  judgment  pleaded  in  this  case  cannot  be  supported  as  a  judg- 
ment in  personam^  because  the  court  rendering  it  had  no  jurisdiction 
of  the  person  of  the  plaintiff,  he  being  a  citizen  of  another  govern- 
ment and  having  no  notice  of  the  suit.  As  a  proceeding  against  his 
[person,  the  judgment  was  coram  7ion  judice,  a  mere  nullity.  This  is 
too  plain  to  need  argument,  and  is,  indeed,  conceded  by  the  counsel 
for  the  defendant,  who  insist  that  it  is  an  estoppel  as  a  proceeding 
in  rem,  — that  although  not  binding  on  the  person,  it  is  binding  on 
the  property  in  controversy  and  concludes  its  title.  A  judgment  m 
re7n  I  understand  to  be  an  adjudication,  pronounced  upon  the  status 
of  some  particular  subject-matter,  by  a  tribunal  having  competent 
authority  for  that  purpose.  It  differs  from  a  judgment  i?i  personam 
in  this,  that  the  latter  judgment  is,  in  form  as  well  as  substance, 
between  the  parties  claiming  the  right;  and  that  it  is  so  inter  partes 
appears  by  the  record  itself.  It  is  binding  only  upon  the  parties 
appearing  to  be  such  by  the  record  and  those  claiming  by  them.  A 
judgment  in  rem  is  founded  on  a  proceeding  instituted,  not  against 
the  person,  as  such,  but  against  or  upon  the  thing  or  subject-matter 
itself,  whose  state,  or  condition,  is  to  be  determined.  It  is  a  pro- 
ceeding to  determine  the  state,  or  condition,  of  the  thing  itself;  and 
the  judgment  is  a  solemn  declaration  upon  the  status  of  the  thing, 
and  it  ipso  facto  renders  it  what  it  declares  it  to  be. 

The  probate  of  a  will  I  conceive  to  be  a  familiar  instance  of  a 
proceeding  iii  rem  in  this   State.     The  proceeding  is,   in  form  and 

1  Arsuiiients  of  counsel  are  omitted. —  Ei). 


SECT.    III.]  WOODRUFF    V.    TAYLOR. 


397 


substance,  upou  the  will  itself.  No  process  is  issued  against  any 
one;  but  all  persons  interested  in  determining  the  state,  or  condi- 
tion, of  the  instrument  are  constructively  notified,  by  a  newspaper 
publication,  to  appear  and  contest  the  probate;  and  the  judgment 
is,  not  that  this  or  that  person  shall  pay  a  sum  of  money,  or  do  any 
particular  act,  but  that  the  instrument  is,  or  is  not,  the  will  of  the 
testator.  It  determines  the  status  of  the  subject-matter  of  the  pro- 
ceeding. The  judgment  is  upon  the  thing  itself;  and  when  the 
proper  steps  required  by  law  are  taken,  the  judgment  is  conclusive, 
and  makes  the  instrument,  as  to  all  the  world  (at  least  so  far  as  the 
property  of  the  testator  within  this  State  is  concerned),  just  what 
the  judgment  declares  it  to  be.  This  is  one  instance  of  a  proceeding 
upon  a  written  instrument,  to  determine  its  state,  or  condition ;  and 
that  determination,  in  its  consequences,  involves  and  incidentally 
determines  the  rights  of  individuals  to  property  affected  by  it. 

But  proceedings  in  rem  may  be  and  often  are  upon  personal  chattels, 
directly  declaring  the  right  to  them.  In  such  cases  the  proceeding 
is  for  the  supposed  violation  by  the  property,  so  to  speak,  of  some 
public  or  municipal  law,  or  regulation,  by  which  it  is  alleged  the 
titla  of  the  former  owner  has  become  divested.  The  property  being 
seized,  a  proceeding  is  then  instituted  against  it,  upon  an  allegation 
stating  the  cause  for  which  it  has  become  forfeited;  upon  which 
public  notice  is  given,  in  some  prescribed  form,  to  all  persons  to 
appear  and  contest  the  allegation.  It  is  by  no  means  certain,  that 
all  persons  having  an  interest  in  the  property  have  actual  notice  of 
the  proceeding;  but  if  the  thing  itself,  upou  which  the  proceeding  is 
had,  be  within  the  jurisdiction  of  the  court,  all  persons  interested  are 
held  to  have  constructive  notice;  and  the  sentence,  or  decree,  of  the 
court,  declaring  the  state,  or  condition,  of  the  property,  is  held  to 
be  conclusive  upon  all  the  world.  A  sale  of  the  property,  under  such 
sentence,  passes  the  right  absolutely;  and  farther,  in  the  case  of 
judgments  of  courts  of  admiralty,  they  are  also  held  to  be  conclusive 
evidence  of  the  facts  stated  in  the  decree  to  have  been  found  by  the 
court,  as  the  basis  of  the  decree.  And  perhaps  the  judgments  of 
municipal  courts,  acting  in  rem,  within  the  sphere  of  their  jurisdic- 
tion, would  have  the  same  effect. 

These  proceedings  that  have  been  mentioned  are  purely  in  rem. 
But,  besides  these,  there  is  another  class  of  cases,  which  may  per- 
haps be  considered,  to  some  extent,  proceedings  in  rem,  though  in 
form  they  are  proceedings  inter  partes.  An  attachment  of  property 
in  this  State,  where  the  court  has  jurisdiction  of  the  property,  but 
not  of  the  person  of  the  defendant,  and  a  sale  of  it  (or  a  levy  upon 
it,  if  it  be  real  estate),  on  execution,  is  in  the  nature  of  a  proceed- 
ing in  rem.  The  judgment,  if  the  defendant  have  no  notice,  would 
be  treated  as  a  nullity  out  of  our  jurisdiction,  so  far  as  the  person 
of  the  defendant  was  concerned;  though  it  would  be  held  binding, 
ae  between  the  parties,  so  far  as  regarded  the  property,  as  a  pro- 


398 


WOODRUFF   V.   TAYLOR.  [CHAP.    III. 


ceeding  in  rem.  The  defendant  would  not,  1  apprehend,  be  allowed 
to  recover  back  his  property  in  another  jurisdiction.  The  status  of 
the  property,  as  between  the  plaintiff  and  defendant,  would  be  held 
to  have  been  determined  by  the  proceeding.  But  the  proceeding 
would  not  in  any  way  affect  the  status  of  the  property  as  to  any 
other  persons  than  the  parties  to  the  record  and  those  claiming  by 
them. 

Our  proceeding  of  foreign  attachment  partakes,  perhaps  still  more, 
of  the  nature  of  a  proceeding  in  rem  ;  but  its  operation  as  such  is 
also  of  a  limited  character.  The  suit  is  inter  partes,  and,  as  a  pro- 
ceeding in  rem,  it  must  be  confined  to  such  parties.  A  process  is 
issued  in  favor  of  a  plaintiff,  declaring  against  his  debtor  residing 
in  another  government,  and  alleging,  also,  that  another  person  here, 
named  in  the  process  and  styled  a  trustee,  has  goods  in  his  hands 
belonging  to  the  plaintiff's  debtor,  or  is  indebted  to  him,  and  pray- 
ing that  the  goods  or  debt  found  here  may  be  declared  forfeited  to 
the  plaintiff,  or,  in  other  words,  that  the  property  here  may  be 
applied  in  payment  of  the  plaintiff's  demand.  I  conceive  the  court 
here  has  jurisdiction  of  the  property  in  the  hands  of  the  trustee,  or 
the  debt  due  from  him,  —  it  being  found  in  our  jurisdiction,  —  and 
that  the  court  may  proceed  upon  it  in  rem.  After  publication,  by 
which  the  debtor  is  constructively  notified  of  the  proceeding  against 
his  property,  the  court  adjudicates  upon  the  property  and  declares 
that  it  shall  be  delivered,  or  paid,  to  the  plaintiff,  to  be  applied  upon 
his  debt.  I  think  such  adjudication  changes  the  status  of  the  prop- 
erty, or  debt,  and  deprives  the  principal  debtor  of  all  title  to  it; 
that  such  adjudication  should  be  held  binding  and  conclusive  upon 
all  the  parties  to  the  proceeding;  that  the  foreign  creditor  of  the 
trustee,  having  placed  his  property,  or  his  credit,  within  this  juris- 
diction, should  be  bound  by  its  forfeiture,  declared  by  our  courts; 
and  that  he  should  be  barred,  in  any  other  jurisdiction,  from  prose- 
cuting his  claim  against  the  trustee.  But  the  operation  of  this  pro- 
ceeding in  rem  must  be  limited  to  the  parties  to  it,  and  cannot  in 
any  manner  affect  the  right  or  interest  of  any  other  person,  having 
an  independent  and  adverse  claim  to  the  goods,  or  debt,  which  was 
the  subject-matter  of  the  suit.  The  court  does  not  pretend  to  notify 
such  adverse  claimant,  either  constructively,  or  otherwise;  nor  does 
the  proceeding  profess  to  determine  the  rights  of  any  other  persons 
than  those  who  are  parties  of  record  to  it;  and  it  can,  consequently, 
affect  the  rights  of  no  other  persons. 

The  distinction  between  proceedings  purely  m  rem  and  those  of  a 
limited  character,  which  have  been  mentioned,  I  think  is  strongly 
and  plainly  marked.  The  object  and  purpose  of  a  proceeding  purely 
in  rem  is  to  ascertain  the  right  of  every  possible  claimant;  and  it  is 
instituted  on  an  allegation,  that  the  title  of  the  former  owner,  who- 
ever he  may  be,  has  become  divested;  and  notice  of  the  proceeding 
is  given  to  the  whole  world  to  appear  and  make  claim  to  it.     From 


SECT.    III.]  WOODRUFF   V.   TAYLOR.  399 

the  nature  of  the  case  the  notice  is  constructive,  only,  as  to  the 
greater  part  of  the  world;  but  it  is  such  as  the  law  presumes  will  be 
most  likely  to  reach  the  persons  interested,  and  such  as  does,  in  point 
of  fact,  generally  reach  them.  In  the  case  of  a  seizure  for  the  viola- 
tion of  our  revenue  laws,  the  substance  of  the  libel,  which  states  the 
ground  on  which  the  forfeiture  is  claimed,  with  the  order  of  the  court 
thereon,  specifying  the  time  and  place  of  trial,  is  to  be  published  in 
a  newspaper,  and  posted  up  a  certain  number  of  days;  and  proclama- 
tion is  also  made  in  court  for  all  persons  interested  to  appear  and 
contest  the  forfeiture.  And  in  every  court  and  in  all  countries, 
whose  judgments  are  respected,  notice  of  some  kind  is  given.  It  is, 
indeed,  as  I  apprehend,  just  as  essential  to  the  validity  of  a  judg- 
ment in  ?'e??z,  that  constructive  notice,  at  least,  should  appear  to 
have  been  given,  as  that  actual  notice  should  appear  upon  the 
record  of  a  judgment  hi  personam.  A  proceeding  professing  to 
determine  the  right  of  property  where  no  notice,  actual  or  construc- 
tive, is  given,  whatever  else  it  might  be  called,  would  not  be  entitled 
to  be  dignified  with  the  name  of  a  judicial  proceeding.  It  would  be 
a  mere  arbitrary  edict,  not  to  be  regarded  anywhere  as  the  judgment 
of  a  court.     Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumn.  607. 

The  limited  proceedings  m  rem,  before  mentioned,  are  not  based 
on  any  allegation  that  the  right  of  property  is  to  be  determined 
between  any  other  persons  than  the  parties  to  the  suit;  no  notice  is 
sought  to  be  given  to  any  other  persons;  and  the  judgment  being 
only  as  to  the  status  of  the  property  as  between  the  parties  of  record, 
it  is,  as  to  all  others  persons,  a  mere  nullity. 

If  we  apply  these  principles  to  the  record  pleaded  in  bar  in  this 
•case,  I  think  it  will  be  impossible  to  maintain  that,  as  to  the  plain- 
tiff Woodruff,  it  was  a  proceeding  in  rem.  There  was  no  allegation 
that  the  status  of  the  property,  levied  upon  as  the  property  of  Phelps 
Smith,  or  the  avails  of  it,  when  paid  into  court,  was  to  be  adjudi- 
cated as  to  him,  and  there  was  no  notice,  actual  or  constructive,  to 
him  to  appear  and  make  any  claim  to  it.  The  judgment  was  ren- 
dered in  a  suit  inter  partes,  in  which  Taylor  was  plaintiff  and  Phelps 
Smith  defendant;  and  though  it  bound  the  property  as  between  them, 
it  could  affect  the  rights  of  no  other  person.  It  is  precisely  the  case 
of  a  levy  of  an  execution,  in  this  State,  upon  personal  property,  as 
that  of  the  judgment  debtor,  of  which  property  some  third  person 
•claims  to  be  tlie  owner.  If  such  third  person  were  to  bring  trespass 
against  the  judgment  creditor  for  making  the  levy,  I  do  not  perceive 
why  such  creditor,  with  the  same  propriety  as  the  defendant  in  this 
case,  might  not  plead  his  levy  and  sale  in  bar  as  a  proceeding  in 
rem.  The  record  in  this  case,  indeed,  shows  that  the  levy  was 
made  in  the  presence  of  a  Reeors,  which  a  levy  in  this  State  would 
not;  but  I  apprehend  the  high  standing  or  oflicial  character  of  tlic 
witnesses  to  a  trespass  would  not  purge  its  illegality,  or  bar  a  right 
•of  recovery. 


400  WOODEUFF   V.   TAYLOR.  [CHAP.   III. 

But  the  record  of  the  judgment  in  the  King's  Bench  wholly  fails  to 
show  that  the  right  of  the  plaintiff  in  this  suit  to  the  property  was 
attempted  to  be  adjudicated ;  and  there  is  no  averment  in  the  plea 
that  it  was  adjudicated.  The  plea  states,  in  substance,  that,  by  the 
law  of  Canada,  it  would  have  been  adjudicated  if  the  plaintiff  had 
appeared  in  the  court  and  made  claim  to  the  property.  And  by  the 
facts  set  forth  in  the  plea  we  are  given  clearly  to  understand  that  it 
was  not  adjudicated,  because  the  plaintiff  did  not  so  make  his  claim. 
It  would  therefore  be  impossible  to  maintain  this  plea,  as  furnishing 
evidence  that  the  matter  in  controversy  is  res  adjudicata^  even  if 
the  plaintiff  had  had  notice  of  the  proceeding.  If  the  plea  could, 
under  such  circumstances,  be  sustained,  even  in  the  courts  of 
Canada,  it  would  not  be  because  the  matter  had  been  adjudicated, 
but  because  the  plaintiff,  having  neglected  to  have  his  claim  adju- 
dicated at  the  time  and  in  the  manner  pointed  out  by  the  laws  of 
that  province,  was  thereby  barred  of  any  other  remedy.  The  plea 
does  not  aver  that  the  property  of  the  plaintiff,  being  found  in  the 
possession  of  Phelps  Smith,  in  Canada,  might  for  that  reason,  or 
for  any  other  reason,  be  legally  levied  upon  and  sold  as  the  property 
of  Smith.  It  in  effect  admits  that  the  original  levy  upon  the  plain- 
tiff's property  was  wrongful,  but  proceeds  upon  the  ground  that,  by 
reason  of  the  subsequent  proceedings,  the  wrong  cannot  now  be  re- 
dressed. The  original  right  of  action  of  the  plaintiff  is  conceded, 
but  it  is  insisted  that,  by  something  arising  ex  post  facto^  his 
remedy  is  gone.  It  is  not  a  bar  to  the  right  that  is  relied  upon,  but 
a  bar  to  the  redress.  This  ground  of  defence  would  therefore  seem 
to  rest  upon  a  local  law  of  the  province  of  Canada,  which  affects  the 
plaintiff's  remedy  only,  but  which,  by  the  well-settled  doctrine  of  the 
common  law,  can  be  of  no  avail  when  a  remedy  is  sought  in  another 
jurisdiction. 

But  it  is  unnecessary  to  consider  farther  what  might  have  been 
the  effect  of  the  defendant's  plea,  if  the  plaintiff,  at  the  time,  had 
been  a  resident  of  Canada;  because  it  seems  quite  clear  that  it  can 
have  no  effect  whatever  upon  the  cause  of  action  of  one  who  was, 
during  the  whole  proceeding,  a  resident  citizen  of  another  govern- 
ment, not  subject  to  the  law  of  the  province,  and  who  had  no  notice 
of  the  proceeding.     Story's  Coufl.  of  Laws,  487. 

The  result  is,  that  the  judgment  of  the  count}'  court  is  reversed, 
the  replication  is  held  sufficient,  and  the  case  is  remanded  to  the 
county  court  for  the  trial  of  the  issue  of  fact.^ 

1  Ace.  Putnam  v.  McDougall,  47  Vt.  478.  —  Ed. 


SECT.    III.]      SUTHERLAND   V.    SECOND    NAT'L    BANK   OF   PEOKIA.       401 

SUTHERLAND  v.  SECOND   NATIONAL  BANK  OF  PEORIA. 

Court  of  Appeals,  Kextucky.     1880. 
[Reported  78  Kentucky,  250.] 

CoFER,  J.  January  2,  1879,  the  appellant  brought  this  suit  in  the 
Louisville  Chancery  Court  against  IS.  C.  Bartlett  &  Co.,  non-residents 
of  the  State,  and  sued  out  an  attachment  against  their  property.  The 
order  of  attachment  was  executed  on  that  day  on  the  Ohio  and  Missis- 
sippi Railway  Company  by  delivering  a  copy  thereof  to  its  agent  in  the 
city  of  Louisville,  and  by  summoning  the  company  as  a  garnishee,  but 
without  giving  to  the  company  a  notice  specifying  the  property  attached. 
January  4  an  alias  attachment  was  issued  and  placed  in  tlie  hands  of 
the  marshal,  who,  on  the  8th,  levied  it  on  one  car-load  of  oats  in  the 
possession  of  the  Ohio  and  Mississippi  Railway  Company.  The  mar- 
shal took  the  oats  into  his  possession,  and  it  was  subsequently  sold  under 
order  of  the  court.  Subsequently  the  appellee  filed  its  petition,  claim- 
ing that  it  had  a  lien  on  the  oats. 

The  pleadings  and  evidence  disclose  the  following  facts  :  — 

December  24,  1878,  S.  C.  Bartlett  &  Co.  delivered  a  car-load  of  oats 
to  the  Peoria,  Pekin,  and  Jacksonville  Railroad  Company,  at  Peoria, 
Illinois,  consigned  to  the  appellant  at  Louisville,  and  took  from  the 
Railroad  Companj'  a  through  bill  of  lading.  They  then  drew  upon  the 
appellant  against  the  shipment,  and  he  declined  to  honor  the  draft. 
Being  informed  of  that  fact  by  telegraph,  Bartlett  &  Co.  caused  the  oats 
to  be  stopped  in  transitu  on  the  second  day  of  January,  and  on  that 
day  surrendered  to  the  railroad  company'  the  bill  of  lading,  and  took 
another,  consigning  the  oats  to  "  S.  C.  Bartlett  &  Co.,  notify  Verhoff 
&  Strater,  Louisville,  Ky."  They  then  drew  on  Verhoff  &  Strater, 
and  attaching  the  bill  of  lading  to  the  draft,  on  the  third  of  January 
sold  the  draft  to  the  appellee,  who  had  no  notice  of  the  attachment  of 
the  appellant  at  Louisville. 

The  appellee  transmitted  the  draft  to  Louisville,  but  Verhoff  &  Strater 
refused  to  honor  it,  assigning  as  a  reason  that  the  oats  had  been  attached, 
and  they  did  not  wish  to  become  involved  in  the  controversy. 

Upon  these  facts  the  court  below  adjudged  in  favor  of  the  appellee, 
but  allowed  the  marshal's  costs  for  selling  the  oats  to  be  deducted  from 
the  proceeds,  and  refused  to  render  judgment  against  the  appellant  on 
a  counter-claim  for  damages  for  the  illegal  seizure  of  the  oats.  From 
that  judgment  l)oth  parties  appeal. 

Counsel  for  the  appellant  contend  that,  at  the  time  the  second  bill  of 
lading  was  issued,  the  oats  had  passed  out  of  the  possession  of  the 
Peoria,  Pekin  and  Jacksonville  Railroad  Company  into  the  possession 
of  the  Ohio  and  Mississipi)i  Company,  and  therefore  the  new  bill  of  lad- 
ing was  invalid  and  ineffectual  to  invest  the  bank  with  a  valid  lien  on 
the  oats.  ^. 


402        SUTHERLAND    V.    SECOND    NAT'L    BANK   OF   PEORIA.      [CHAP.    III. 

As  authority  in  support  of  this  position,  counsel  cites  that  class  of 
cases  in  which  it  has  been  held  that  a  bill  of  lading  signed  by  the  mas- 
ter of  a  vessel  before  receiving  the  possession  of  the  goods  does  not 
bind  the  owners. 

Those  cases  are  not  analogous  to  this.  The  oats  had  been  received 
by  the  railroad  company  to  be  forwarded  to  Louisville,  and  was  in  the 
custody  of  the  Ohio  and  Mississippi  Company  when  the  new  bill  was 
signed.  The  possession  of  the  latter  company  was  held  under  and  by 
virtue  of  the  contract  of  affreightment  made  with  the  Peoria,  Pekin  and 
Jacksonville  Company,  and  the  consignors  had  the  same  right  to  change 
the  destination  of  the  oats  while  in  transitu  that  they  would  have  had 
if  the  company  receiving  the  oats  from  them  had  had  a  continuous  line 
to  Louisville.  There  is  no  question  here  between  the  consignor  or  con- 
signee and  the  carrier,  and  no  reason  is  perceived  why  the  new  bill  of 
lading  is  not  valid  when  called  in  question  between  a  bona  fide  holder 
and  one  claiming  a  lien  on  account  of  an  attachment  against  the  goods 
of  the  consignor. 

The  bill  of  lading  authorized  the  holder  to  demand  the  oats  from  the 
carrier,  and,  being  a  recognized  symbol,  its  delivery  to  the  bank  was  a 
symbolic  delivery  of  the  oats,  and  constituted  a  valid  pledge. 

But  it  is  contended  that  the  service  of  the  first  order  of  attachment 
on  the  Ohio  and  Mississippi  Railway  Company  created  a  lien  on  the 
oats  then  in  its  possession,  and  as  that  service  was  prior  in  time  to  the 
pledging  of  the  oats  by  the  delivery  of  the  bill  of  lading  to  the  bank, 
the  appellant  has  the  eldest  and  superior  lien. 

At  the  time  the  first  order  of  attachment  was  served,  S.  C.  Bartlett 
&  Co.  were  non-residents  of  the  State,  and  the  oats  was  in  the  State  of 
Illinois.  No  personal  service  could  be  had  upon  the  defendants,  nor 
could  the  goods  be  seized  under  the  order  of  attachment.  The  con- 
signors still  had  the  right  to  stop  the  oats  in  transitu,  or  to  alter  its 
destination  ;  and,  in  our  opinion,  the  service  of  the  attachment  on  the 
railway  company  while  the  oats  was  beyond  the  limits  of  this  State 
created  no  lien.  True,  the  Ohio  and  Mississippi  Railway  Company  was 
within  the  jurisdiction  of  the  court,  but  the  property  sought  to  be  reached 
was  without  its  jurisdiction  and  the  laws  of  the  State,  and  the  process 
of  the  courts  here  could  not  reach  it  nor  compel  the  carrier  to  bring  it 
hither ;  and  as  the  court  would  have  had  no  power  to  subject  the  prop- 
erty unless  brought  within  its  jurisdiction,  its  process  could  not  create 
a  lien  upon  it  until  it  came  within  the  county  where  the  order  of  attach- 
ment was  in  the  hands  of  the  officer. 

Counsel  cite  the  case  of  Childs  v.  Digby  (24  Penn.  St.  23),  in  sup- 
port of  a  contrary  conclusion,  but  that  case  was  overruled  in  Pennsyl- 
vania Railroad  Company  v.  Rennock  (51  Penn.  St.  244). 

The  alias  order  of  attachment,  issued  on  the  fourth  of  January,  was 
in  the  officer's  hands  when  the  oats  arrived  in  Louisville  on  the  6th, 
and  was  levied  on  the  8th,  and  created  a  valid  lien,  subject,  however,  to 
the  prior  lien  of  the  bank. 


SECT.    III.]      MAHR  V.  NORWICH  UNION  FIRE  INSURANCE  SOCIETY.      403 

It  results  from  this  conclusion  that  the  seizure  of  the  oats  under  the 
attachment  was  wrongful,  and  as  the  proceeds  were  not  sufficient  to  pay 
the  debt  for  which  the  bank  had  a  lien,  the  court  erred  in  allowing  the 
marshal's  fee  to  be  retained  out  of  the  price.  He  made  the  seizure  and 
sale  at  appellant's  instance,  and  must  look  to  him  for  his  costs. 

The  bank  had  no  right  to  set  up  a  counter-claim  in  this  case  for  the 
damages  resulting  from  the  seizure  of  the  oats ;  but  as  the  judgment 
dismissing  the  counter-claim  absolutely  will  be  a  bar  to  a  suit  to  recover 
such  damages,  the  judgment  must  be  reversed  on  the  cross-appeal,  and 
the  cause  is  remanded,  with  directions  to  cause  the  whole  proceeds  of 
the  sale  to  be  paid  over  to  the  bank,  and  to  dismiss  the  counter-claim 
■without  prejudice.^ 


MAHR  V.    NORWICH   UNION   FIRE   INSURANCE 

SOCIETY. 

Court  of  Appeals  of  New  York.     1891. 

[Reported  127  New  York,  452.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  tirst  judicial  department,  entered  upon  an  order  made  July  9, 
1889,  which  affirmed  a  judgment  in  favor  of  plaintiffs,  entered  upon 
the  decision  of  the  court  on  trial  at  Special  Term. 

This  was  an  action  by  the  plaintiffs,  claiming  to  be  the  equitable 
owners  of  a  policy  of  fire  insurance,  to  restrain  the  insurer  from  pay- 
ing the  amount  of  a  loss  to  the  insured  or  to  his  alleged  assignee. 

On  the  21st  of  April,  1886,  the  Norwich  Union  Fire  Insurance 
Society,  a  corporation  organized  under  the  laws  of  Great  Britain, 
with  agencies  in  New  York,  Iowa,  and  other  States,  issued  the  policy 
in  question  to  one  Bartlett  on  his  stock  of  goods  at  Muscatine,  Iowa. 
The  policy  was  countersigned  by  the  agent  of  the  company  at  that 
place.  Three  days  later  Bartlett,  who  resided  at  IVIuscatine,  sent 
the  policy  by  mail  to  the  plaintiff's,  who  resided  in  the  city  of  New 
York,  as  collateral  security  to  a  loan  of  §2,000  concurrently  made  to 
him  by  them.  The  policy,  as  written,  was  payable  to  Bartlett  only, 
and  it  was  never  assigned  to  the  plaintiffs.  July  3,  1886,  the  prop- 
erty insured  was  destroyed  by  fire,  and  on  the  sixteenth  of  August 
following  Bartlett  made  an  absolute  assignment  of  the  policy  to  one 
Kelly  of  Muscatine  aforesaid. 

This  action  was  commenced  against  the  insurance  company  and 
Bartlett  by  the  due  service  of  process  in  this  State  upon  the  former, 

1  Ace.  Western  R.  R.  v.  Thornton,  60  Ga.  300  ;  Montrose  Pickle  Co.  v.  Dodson,  76 
la.  172,  40  N.  W.  705  ;  Wheat  v.  P.  C.  &  F.  D.  R.  K.,  4  Kan.  370  ;  Clark  v.  Brewer, 
6  Gray,  320  ;  Bates  v.  Ry.,  GO  Wis.  296,  19  N.  W.  72.  And  see  Noble  v.  Thoniiwoii 
•Oil  Co.,  79  Pa.  369.  —  Ed. 


404      MAHR  V.  NORWICH  UNION  FIRE  INSURANCE  SOCIETY.      [CHAP,  III, 

August  12,  1886,  and  on  the  latter  about  one  month  later.  The  com- 
pany answered,  alleging,  among  other  defences,  a  defect  of  parties 
defendant,  in  that  said  Kelly,  although  a  necessary  party  to  the 
action,  had  not  been  joined.  March  12,  1887,  Kelly  commenced  an 
action  at  law  in  a  court  of  the  State  of  Iowa  to  recover  from  the 
insurance  company  the  sum  of  $2,000,  the  amount  of  the  policy,  with 
interest  from  July  3,  1886.  March  15,  1887,  on  motion  of  the  com- 
pany, an  order  was  made  by  the  Supreme  Court  of  this  State  in  this 
action  requiring  said  Kelly  to  be  made  a  defendant  therein,  and  that 
he  be  brought  into  court  by  a  supplemental  summons.  A  supple- 
mental summons  and  complaint  were  issued  accordingly,  and  the 
same  were  served  on  Kelly  in  the  State  of  Iowa  pursuant  to  an  order 
of  publication  based  upon  an  affidavit  alleging  that  "the  defendant 
S.  G.  Kelly  claims  to  have  property  in  the  State  of  New  York,  to 
wit,  an  interest  in  the  insurance  policy  "  in  question.  No  service 
was  made  upon  Kelly  within  this  State,  and  he  did  not  appear  in  the 
action.  The  insurance  company,  by  its  answer  to  the  supplemental 
complaint,  pleaded  the  pendency  of  the  action  in  the  Iowa  court; 
that  Kelly  was  a  necessary  party,  and  that  the  Supreme  Court  had  by 
its  order  directed  that  he  be  bi'ought  in  as  a  party  defendant,  and 
demanded  judgment  that  the  complaint  be  dismissed  "unless  said 
S.  G.  Kelly  be  brought  in  so  as  to  be  bound  by  any  judgment  herein." 

These  facts  appeared  upon  the  trial  of  this  action,  where  Kelly's 
default  was  noted,  and  were  in  substance  found  by  the  trial  judge, 
who  also  found  that  Kelly  had  no  interest  in  the  policy  "superior  to 
that  of  the  plaintiffs;  .  .  .  and  that  the  alleged  assignment  ...  by 
the  defendant  Bartlett  to  said  S.  G.  Kelly,  of  the  date  August  16, 
1886,  .  .  .  was  void,  and  in  no  wise  affected  the  prior  interest 
obtained  by  the  plaintiffs  in  said  policy  on  or  about  the  24th  day  of 
April,  1886." 

Judgment  was  directed  restraining  the  insurance  company  from 
paying  any  money  under  said  policy  to  Bartlett  or  Kelly,  and 
although  there  was  neither  allegation  nor  evidence  of  any  proof  of 
loss  as  required  by  the  terms  of  the  policy,  the  defendant  company 
was  ordered  "to  pay  to  the  plaintiffs  such  moneys  as  shall  be  found 
to  be  payable  under  and  by  virtue  of  "  said  policy  of  insurance. 

Vann,  J.  Upon  the  argument  of  this  appeal  the  learned  counsel 
for  the  plaintiff,  with  great  fairness,  admitted  that  the  Supreme  Court 
never  acquired  jurisdiction  over  Kelly,  the  alleged  assignee  of  the 
insurance  policy  that  is  the  subject  of  this  action.  The  main  ques- 
tion left  for  decision  is  whether  Kelly  was  a  necessary  party,  as  the 
defendant  company  alleged  in  its  answers  and  urged  upon  the  trial. 
It  is  not  claimed  that  he  should  have  been' joined  as  a  plaintiff,  but 
his  presence  as  a  defendant  is  insisted  upon  as  essential  to  "the 
complete  determination  or  settlement "  of  the  questions  involved. 
The  Code  of  Civil  Procedure  provides  that  "the  court  may  determine 


SECT.  III.]      MAHK  V.  NOKWICII  UNION  FIRE  INSURANCE  SOCIETY.     405 

the  controversy,  as  between  the  parties  before  it,  where  it  eau  do  so 
without  prejudice  to  the  rights  of  others,  or  by  saving  their  rights ; 
but  when  a  complete  determination  of  the  controversy  cannot  be  had 
without  the  presence  of  other  parties,  the  court  must  direct  them 
to  be  brought  in."  Code  Civ.  Pro.  §  452.  While  the  statute  does 
not  in  terms  prohibit  the  court  from  determining  the  controversy, 
unless  all  the  necessary  parties  are  brought  in,  that  is  impliedly  com- 
manded and  is  the  established  practice  in  all  equitable  actions. 
Peyser  v.  Wendt,  87  N.  Y.  322;  Sherman  i\  Parish,  53  id.  483; 
Webster  v.  Bond,  9  Hun,  437;  Shaver  v.  Hrainard,  29  Barb.  25; 
Sturtevant  v.  Caldwell,  4  Bosw.  G28;  Van  Epps  v.  Van  Deusen, 
4  Paige,  64. 

It  is  not  enough  for  the  court  to  direct  that  the  necessar}^  parties 
be  brought  in,  but  it  should  refuse  to  proceed  to  a  determination  of 
the  controversy,  so  as  to  affect  their  rights  until  they  are  in  fact 
brought  in.  Peyser  v.  Wendt,  supra ;  Sherman  v.  Parish,  supra ; 
Powell  V.  Finch,  *^5  Duer,  66G. 

The  plaintiffs  did  not  appeal  from  the  order  of  the  court  requiring 
Kelly  to  be  brought  in  and  as  long  as  it  remained  in  force  it  was  an 
adjudication,  establishing  as  the  practice,  if  not  the  law,  of  the  case 
that  Kelly  was  a  necessary  party.     Riggs  v.  Pursell,  74  N.  Y.  370. 

Moreover,  the  object  of  this  action  was  to  establish  the  equitable 
title  of  the  plaintiffs  to  the  policy  and  to  prevent  the  company  from 
paying  the  proceeds  to  any  one  except  themselves.  The  proceeds, 
however,  were  also  claimed  by  Kelly,  who  not  only  held  the  legal 
title  to  the  policy,  but  had  actually  commenced  an  action  upon  it 
against  the  company  in  another  State.  Clearly,  the  company  should 
not  be  required  to  pay  the  entire  amount  of  the  policy  both  to  the 
plaintiffs  and  to  Kell}',  or,  without  fault  on  its  part,  to  be  placed  in 
a  position  where  it  would  run  any  reasonable  risk  of  being  compelled 
to  make  a  double  payment.  But,  how  is  such  a  result  to  be  pre- 
vented when  an  action  at  law,  brought  by  the  legal  owner  to  compel 
the  company  to  pay  the  amount  of  the  policy  to  him,  is  pending  in 
one  State,  and  an  action  in  equity  by  the  equitable  owner  to  prevent 
such  payment,  is  pending  in  another  State,  unless  all  interested  per- 
sons are  parties  to  the  latter?  Could  the  Court  of  Equity  safely  pro- 
ceed to  judgment  against  the  company,  unless  the  legal  owner  was 
before  it  as  a  party?  If  it  should  enjoin  the  company  from  making 
payment  to  any  one  excei)t  the  etpiitahle  owner,  it  could  not  prevent 
the  legal  owner  from  prosecuting  his  action  to  collection  in  the  other 
jurisdiction.  It  could  not  enjoin  a  person  over  whom  it  had  no 
jurisdiction,   nor  make  any  decree  affecting  his  rights. 

The  general  rule  in  equity  requires  that  all  persons  interested  in 
the  subject  of  the  action  should  be  made  parties,  in  order  to  prevent  a 
nmltiplicity  of  suits  and  secure  a  final  determination  of  their  rights. 
Osterhoudt  v.  Supervisors,  98  N.  Y.  239;  Derham  v.  Lee,  87  id.  599. 

There  is  an  essential  difference  between  the  practice  at  law  and  in 


406     MAHR  V.  NORWICH  UNION  FIRE  INSURANCE  SOCIETY.      [CHAP.  III. 

equity  in  determining  who  are  proper  and  necessary  parties.  Story^ 
in  his  work  on  Equity  Pleadings  (§  72),  says  that  two  general  prin- 
ciples control  courts  of  equity  in  this  respect:  1.  That  the  rights  of 
no  man  shall  be  finally  decided  unless  he  himself  is  present,  or  at 
least  has  had  a  full  opportunity  to  appear  and  vindicate  his  rights; 
2.  That  when  a  decision  is  made  upon  any  particular  subject- 
mattei',  the  rights  of  all  persons  whose  interests  are  immediately  con- 
nected with  that  decision  and  affected  by  it,  shall  be  provided  for  as 
far  as  they  reasonably  may  be.  The  learned  author  adds:  "It  is  the 
constant  aim  of  courts  of  equity  to  do  complete  justice  by  deciding 
upon  and  settling  the  rights  of  all  persons  interested  in  the  subject- 
matter  of  the  suit,  so  that  the  performance  of  the  decree  of  the  court 
may  be  perfectly  safe  to  those  who  are  compelled  to  obey  it,  and 
also,  that  future  litigation  may  be  prevented."  As  Lord  Hardwicke 
once  said,  all  persons  ought  to  be  made  parties  who  are  necessary  to 
make  the  determination  complete  and  to  quiet  the  question.  Poore 
i\  Clark,  2  Atk.  515.  Not  only  all  persons  whose  rights  may  be 
affected  by  the  judgment  should  be  brought  into  court,  but  all  whose 
presence  is  essential  to  the  protection  of  any  party  to  the  action. 
Gray  v.  Schenck,  4  N.  Y.  460;  Russell  v.  Clark,  7  Cranch,  69,  98; 
Picquet  v.  Swan,  5  Mason,  561 ;  Fell  v.  Brown,  2  Brown's  Ch.  218. 

The  burden  is  on  the  plaintiff  to  secure  the  presence  of  all  such 
persons,  and  it  is  his  misfortune  if  he  is  unable  to  do  so. 

When  there  are  conflicting  claimants  to  the  same  obligation,  each 
insisting  upon  it  as  exclusively  his  own,  all  should  be  made  parties 
before  the  question  of  title  is  determined  by  a  court  of  equity  in 
favor  of  either  against  the  one  from  whom  the  obligation  is  due. 
Otherwise  payment  or  performance  may  be  exacted  as  many  times  as 
there  are  separate  claimants.  It  follows  that  the  title  to  a  chose  in 
action,  such  as  the  policy  in  question,  cannot  be  settled  unless  all 
those  who  claim  any  interest  therein,  whether  legal  or  equitable,  are 
joined  as  parties,  plaintiff  or  defendant.  As  it  is  conceded  that 
Kelly,  although  nominally,  is  not  really  a  party  to  the  action,  he  has 
not  had  his  day  in  court,  and  the  decree  in  favor  of  the  plaintiff  being 
void  as  to  him  on  that  account,  is  powerless  to  affect  his  rights  or  to 
afford  protection  to  the  defendant  company  in  obeying  its  command. 
The  absence  of  jurisdiction  over  a  party  is  the  absence  of  power  to 
render  judgment  against  that  party.  AYhile  the  court  assumed  to 
pronounce  judgment  against  Kelly  and  to  restrain  him  from  receiv- 
ing the  money  due  upon  the  policy  and  from  suing  for  its  recovery, 
its  action  in  that  regard  was  coram  non  jvdlce  and  void  as  to  him. 
It  could  not  exercise  judicial  power  over  one  who  was  not  subject  to 
its  jurisdiction,  nor  compel  him  to  obey  a  decree  that  was  rendered 
without  due  process  of  law.  While  its  command  to  the  company  not 
to  pay  Kelly  could  be  enforced  by  punishment  for  disobedience,  its 
command  to  Kelly  not  to  sue  the  company  could  not  be  enforced  by 
punishment  or   otherwise,   because  it  was    made  without    authority. 


SECT.  III.]      MAHR  V.  NORWICH  UNION  FIRE  INSURANCE  SOCIETY.     407 

Hence  Kell}^  could  compel  the  company  to  do  what  the  judgment  pro- 
hibited it  from  doing.  Aside  from  the  question  of  power  to  proceed 
without  jurisdiction  over  Kelly,  such  a  judgment  is  unreasonable 
and  hence  inequitable.  A  court  of  equity  should  not  restrain  a 
party  from  doing  an  act,  when  it  has  no  power  to  protect  that  party 
from  being  compelled  by  another  court  of  competent  jurisdiction  to 
do  the  act  thus  prohibited.  A  forcible  illustration  of  this  appears 
in  a  case  recently  reported,  which  lacks  no  element  of  complete 
analogy,  as  it  was  the  judgment  of  the  court  of  last  resort  in  Iowa 
in  the  action  brought  by  Kell}'  against  the  defendant  company  and 
set  forth  in  its  answer  in  this  action.  Kelly  v.  Norwich  Union 
Fire  Ins.   Co.,  47  N.  W.   Rep.   986,   79  Iowa  R.  425. 

"While  the  judgment  in  that  case  is  not  before  us  as  evidence,  the 
reported  decision  therein  is  just  as  valuable  to  illustrate  what  might 
reasonably  be  expected  to  take  place  as  if  it  were  officially  known 
to  us  as  a  record  of  what  had  taken  place.  That  learned  court,  in 
affirming  a  recovery  by  Kelly  upon  the  policy  in  question  for  its 
whole  amount,  said:  "The  record  of  the  New  York  court  was 
rightly  rejected  for  the  reason  that,  as  against  Kelly,  the  party 
claiming  in  this  case  to  hold  the  policy  and  all  rights  under  it,  the 
decree  and  proceeding  are  void  for  the  reason  that  he  was  not  served 
with  process  subjecting  him  to  the  jurisdiction  of  the  New  York 
court.  Kelly  was  served  with  process  in  this  State  and  did  not 
appear  in  the  case.  The  New  York  court  failed  to  acquire  jurisdic- 
tion of  his  person  by  service  of  process  in  this  State.  The  judg- 
ment, therefore,  as  to  him  is  void." 

We  regard  the  case  cited  as  a  practical  demonstration  that  Kelly  is 
a  necessary  party  to  this  action  and  that  a  court  of  equity  should 
not  have  proceeded  to  judgment  against  the  company  without  first 
acquiring  jurisdiction  over  him.  If  this  were  an  action  at  law 
brought  by  the  plaintiffs  to  recover  upon  the  policy,  a  different  ques- 
tion would  be  presented,  involving  a  conflict  between  the  courts  of 
New  York  and  Iowa.  As  it  is  an  action  in  equity,  however,  it  is 
not  necessary  for  us  to  now  consider  that  subject. 

Having  in  view  our  form  of  government,  the  comity  due  from  the 
courts  of  one  State  to  those  of  another  and  the  necessity  for  freedom 
of  commercial  transactions  between  citizens  of  different  States,  such 
(juestions  should. not  be  hastily  entertained,  but  should  be  avoided 
when  the  rights  of  parties  can  be  satisfactorily  determined  upon 
other  grounds.     Story  on  Conflict  of  Laws,   §  9. 

AVe  think  that  further  argument  is  not  required  to  show  that  Kelly 
was  a  necessary  party  to  tliis  action  and  that  the  trial  court  erred  in 
lendering  the  judgment  appealed  from  without  first  acquiring  juris- 
diction over  him. 

The  judgment  should,  therefore,  be  reversed,  and  a  new  trial 
granted,  with  costs  to  abide  event. 

All  concur.  JiKhpne^it  reversed. 


408  RENIER    V.    HUELBUT.  [CHAP.    III. 


RENIER  V.    HURLBUT. 
Supreme    Court   of    Wisconsin.     1891. 

[Reported  81  Wis.  24.] 

Cassoday,  J.  It  appears  from  the  record  that  September  26,  1888, 
the  plaintiff  recovered  judgment  upon  a  policy  of  insurance  in  the 
Circuit  Court  for  Brown  County  against  the  Dwelling-House  Insurance 
Company,  a  corporation  created  and  organized  under  the  laws  of 
Massachusetts,  and  having  its  principal  place  of  business  at  Boston, 
by  reason  of  loss  by  fire  of  a  dwelling-house,  barns,  and  property  therein, 
for  $3,416.76  ;  that  the  said  Boston  company  appealed  from  said  judg- 
ment to  this  court,  and  upon  such  appeal  the  defendants,  Hurlbut  and 
Boaler,  executed  an  undertaking  to  the  plaintiff,  wherein  and  whereby 
they  agreed  and  undertook,  pursuant  to  the  statute,  that  they  would 
pay  all  costs  which  might  be  awarded  against  said  Boston  company  on 
said  appeal,  not  exceeding  $250,  and  also  undertook  that,  in  case  said 
judgment  should  be  affirmed,  they  would  pay  the  amount  thereof;  that 
said  judgment  was  affirmed  on  said  appeal,  April  25,  1889  (74  Wis. 
89,  42  N.  W.  Rep.  208)  ;  that  the  remittitur  thereon  was  not  filed  in 
the  trial  court  until  November  18,  1889  ;  that  August  1,  1890,  this 
action  was  commenced,  upon  said  undertaking,  against  said  Hurlbut 
and  Boaler ;  that  the  defendants  herein  answered,  and  admitted  all  the 
allegations  of  the  complaint,  and,  in  effect,  alleged  that  June  28,  1889, 
the  Saint  Paul  Fire  &  Marine  Insurance  Company,  created  and  organ- 
ized under  the  laws  of  Minnesota,  commenced  an  action  in  the  Superior 
Court  for  Cook  County,  in  the  State  of  Illinois,  against  this  plaintiff,  on 
a  claim  for  S2,256,  and  in  said  action  served  garnishee  process  upon 
the  said  Boston  company's  agent  at  Chicago  ;  that  the  process  in  said 
last-named  action  against  this  plaintiff  was  made  returnable  November 
4,  1889,  and  was  served  only  by  the  publication  of  notice  for  three 
successive  weeks,  commencing  October  22,  1889,  and  ending  Novem- 
ber 5,  1889,  and  mailing  copies  thereof,  etc.,  to  the  plaintiff  in  Wis- 
consin, where  she  resided  during  all  the  times  mentioned  ;  that  upon 
the  trial  of  said  action  the  court  found,  in  effect,  the  facts  stated  ;  and 
also  that  the  said  Boston  company  had  not  paid  the  plaintiff  anything 
on  said  judgment,  except  $1,200,  paid  thereon  July  1,  1889  ;  that  this 
plaintiff  had  not  been  personally  served  with  summons  or  other 
process  in  the  proceedings  in  the  Superior  Court  of  Cook  County,  and 
had  not  appeared  in  said  proceedings  ;  that  the  judgment  so  recovered 
in  said  Brown  County  was  exempt  from  seizure  on  attachment  or  exe- 
cution, under  the  laws  of  Wisconsin,  during  all  the  time  mentioned, 
but  was  not  exempt  under  the  laws  of  Illinois  ;  and,  as  a  conclusion  of 
law,  that  the  defendants  were  entitled  to  judgment  against  the  plain- 
tiff, abating  this  action.  From  the  judgment  entered  thereon  accord- 
ingly the  plaintiff  brings  tliis  appeal. 


SECT.    III.]  RENTER   V.    HURLBUT.  409 

During  all  the  times  mentioned  in  the  foregoing  statement  the  plain- 
tiff, Mrs.  Renier,  was  domiciled  in  and  a  resident  of  this  State.  The 
St.  Paul  compan\-  mentioned,  claiming  to  be  a  creditor  of  hers  for  a 
large  amount,  commenced  an  action  against  her,  not  in  an}*  of  the 
courts  of  Wisconsin,  but  in  the  Su[)erior  Court  for  Cook  Count}',  111., 
and  garnished  the  Boston  company,  as  a  foreign  corporation,  b}'  serv- 
ing garnishee  process  upon  its  agent  located  in  Chicago.  Mrs.  Renier 
did  not  appear  in  that  action,  nor  in  such  garnishee  proceedings,  and 
no  process  or  notice  of  any  kind  was  ever  served  upon  her  therein 
otherwise  than  by  publication,  as  mentioned.  It  is  claimed  that  such 
publication  was  insufficient,  but  for  the  purpose  of  this  appeal,  it  is 
assumed  that  the  statutes  of  Illinois  were  in  all  respects  complied  with. 
Upon  the  facts  stated  the  law  is  well  settled  by  the  Supreme  Court  of 
the  United  States  to  the  effect  that  the  Chicago  court  obtained 
no  jurisdiction  to  render  any  personal  judgment  against  Mrs. 
Renier.  St.  Clair  v.  Cox,  106  U.  S.  350  ;  Pennoyer  v.  Neff,  95 
U.  S.  714  ;  Thompson  v.  Whitman,  18  Wall.  457  ;  Public  W^orks 
V.  Columbia  College,  17  Wall.  521.  To  the  same  effect  are  the  deci- 
sions of  this  court.  Witt  v.  Meyer,  69  Wis.  595,  35  N.  W.  Rep.  25  ; 
Smith  V.  Grady,  68  Wis.  215,  31  N.  W.  Rep.  477.  This  being  so,  it 
is  very  obvious  that  the  most  that  could  be  accomplished  in  the 
Chicago  court  was  to  reach  property,  assets,  or  credits  belonging  to 
Mrs.  Renier,  and  within  the  jurisdiction  of  that  court.  This  is  appar- 
ent from  the  authorities  cited.  If  there  was,  therefore,  a  want  of 
jurisdiction  in  that  court  as  to  such  property,  assets,  or  credits,  then 
the  proceedings  therein  were  null  and  void,  and  could  not  operate  to 
abate  or  defeat  the  suit  at  bar.  The  question  recurs  whether,  at  the 
time  of  such  garnishment,  Mrs.  Renier  was  the  owner  of  any  property, 
assets,  or  credits  within  such  jurisdiction  of  the  Chicago  court.  There 
is  no  pretence  that  at  the  time  the  garnishee  papers  were  served  upon 
the  Chicago  agent  of  the  Boston  company  he  had  in  his  possession  or 
under  his  control  any  tangible  property  belonging  to  Mrs.  Renier. 
The  extent  of  the  claim  is  that  at  that  time  the  Boston  company  was 
indebted  to  Mrs.  Renier  upon  the  judgment  recovered  in  the  Circuit 
Court  for  Brown  County,  mentioned  in  tlie  foregoing  statement,  and 
hence  that  such  indebtedness  was  attached  or  reached  by  the  service  of 
the  garnishee  papers  upon  the  Boston  company's  agent  in  Chicago.  If 
such  contention  can  be  maintained,  then  it  is  obvious  that  the  St.  Paul 
company  might  have  attached  such  indebtedness  by  such  garnishee 
proceedings  in  any  State  or  city  in  the  Union  where  the  Boston  com- 
pany happened  to  have  an  office  and  an  agent.  This  would  necessarily 
be  upon  the  theory  that  such  indebtedness  to  Mrs.  Renier  was  ambula- 
tory, following  each  of  the  several  agents  of  the  P>oston  company,  and, 
for  the  purposes  of  garnishment,  having  a  situs  with  and  in  the  ollice 
of  each  and  all  of  such  agents,  wherever  they  happened  to  be  located. 
If  such  is  the  law,  it  is  certainly  important  that  all  should  know  it.  As 
indicated,  none  of  the  parties  to  the  proceedings  in  the  Chicago  court 


410  RENIER  V.    HURLBUT.  [CHAP.  III. 

were  residents  of  Illinois.  Proceedings  by  garnishment  are  in  their 
nature  very  much  like  the  old  trustee  process.  In  such  a  case  in 
Massachusetts,  at  an  earl}'  day,  the  court  refused  to  take  jurisdiction, 
for  the  reason  that  all  the  parties  were  non-residents.  Tingley  v. 
Bateman,  10  Mass.  346.  It  was  there  said,  in  behalf  of  the  court,  that 
' '  the  summoning  of  a  trustee  is  like  a  process  in  rem.  A  chose  in  action 
is  thereby  arrested,  and  made  to  answer  the  debt  of  the  principal.  The 
person  entitled  b}'  the  contract  or  duty  of  the  supposed  trustee  is  thus 
summoned  by  the  arrest  of  this  species  of  effects.  These  are,  however, 
to  be  considered,  for  this  purpose,  as  local,  and  as  remaining  at  the 
residence  of  the  debtor  or  person  intrusted  for  the  principal;  and  his 
rights,  in  this  respect,  are  not  to  be  considered  as  following  the  person 
of  the  debtor  to  any  place  where  he  may  be  transiently  found,  to  be 
there  taken  at  the  will  of  a  third  person,  within  a  jurisdiction  where 
neither  the  original  creditor  nor  debtor  resides."  To  the  same  effect 
are  Sawyer  v.  Thompson,  24  N.  H.  510  ;  Bowen  v.  Pope,  125  111.  28, 
17  N.  E.  Rep.  64.  It  has  also  been  repeatedly  held  in  Massachusetts 
that  a  trustee  residing  in  another  State,  though  temporai'ily  therein  when 
service  is  made  upon  him,  is  not  liable  to  the  trustee  process,  and 
especially  is  this  so  where  the  principal  defendant  Is  also  a  non-resident. 
Ray  V.  Underwood,  3  Pick.  302 ;  Hart  v.  Anthony,  15  Pick.  445  ;  Nye 
V.  Liscombe,  21  Pick.  263.  To  the  same  effect  are  Lawrence  v.  Smith, 
45  ]Sr.  H.  533  ;  Green  v.  Bank,  25  Conn.  452  ;  Lovejoy  v.  Albee.  33  Me. 
414.  The  only  exception  to  this  rule  seems  to  be  where  tangible  prop- 
erty belonging  to  the  principal  defendant  has  been  actually  seized 
within  the  State,  or  the  contract  or  promise  is  to  be  performed  within 
the  State.  Id.  ;  Sawyer  v.  Thompson,  supra  ;  Young  v.  Ross,  31  N.  H. 
201 ;  Lawrence  v.  Smith,  siqyra  ;  Guillander  v.  Howell.  35  N.  Y.  657  ; 
Lovejoy  v.  Albee,  supra.  Some  of  the  authorities  cited  and  the  views 
thus  expressed  were  considered  and  sustained  by  Mr.  Justice  Orton  in 
Commercial  Nat.  Bank  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  45  Wis.  172. 
The  courts  of  Massachusetts  have  gone  to  the  extent  of  holding  that 
a  resident  of  that  State,  having  contracted  to  deliver  goods  at  a  place 
in  another  State,  could  not  be  charged  in  foreign  attachment  as  the 
trustee  of  the  person  to  whom  the  goods  were  thus  contracted.  Clark 
V.  Brewer,  6  Gray,  320.  In  Danforth  r.  Penny,  3  Mete.  (Mass.)  564, 
it  was  held  that  a  foreign  corporation,  having  no  specific  articles  of 
property  in  its  possession  within  that  State  belonging  to  the  principal 
defendant  to  whom  it  was  indebted,  could  not  be  charged  by  trustee 
process,  notwithstanding  man}'  of  its  members  and  officers  resided  there, 
and  its  books  and  records  were  kept  there.  To  the  same  effect  is  Gold 
V.  Railroad  Co.,  1  Gray,  424,  where  it  was  held  that  a  foreign  railroad 
corporation  could  not  be  charged  by  the  trustee  process,  although  in 
possession  of  a  railroad  in  Massachusetts  under  leases  from  the  pro- 
prietors thereof;  and  also  Towle  v.  Wilder,  57  Vt.  622  ;  Railroad  Co. 
V.  Dooley,  78  Ala.  524  ;  Railroad  Co.  v.  Chumbey  (Ala.),  9  South.  Rep. 
286 ;  Railroad  Co.  v.  Thornton,  60  Ga.  300  ;  Bates  v.  Railroad   Co., 


SECT.    III.]  RENIER    V.    HUULBUT.  411 

60  Wis.  296,  19  X.  AV.  Rep.  72  ;  Sutherland  v.  Bauk,  78  Ky.  250. 
In  Smith  v.  Life  Insurance  Co.,  14  Allen,  336,  it  was  held  that  the 
courts  of  Massachusetts  would  not  entertain  jurisdiction  of  a  bill  in 
equity,  brought  by  a  citizen  of  Alabama  against  such  foreign  insurance 
corporation,  to  restore  him  to  his  rights  under  a  life  policy,  notwith- 
standing such  foreign  corporation  transacted  business  therein,  and  had 
a  resident  agent  therein,  upon  whom  all  lawful  process  against  the 
company  might  be  served.  The  theory  upon  which  foreign  attachments 
and  foreign  garnishments  are  sustained  is  that  the  principal  defendant 
is  beyond  the  reach  of  process,  but  that  his  property  is  within  the  reach 
of  such  process,  and  ma}-,  therefore,  be  seized  thereon.  Railroad  Co. 
V.  Peunock,  51  Pa.  St.  244.  As  indicated,  the  proceedings  in  the 
Chicago  court  were  not  based  upon  any  cause  of  action  originating  in 
the  State  of  Illinois,  nor  to  enforce  any  contract  or  engagement  entered 
into  with  reference  to  any  subject-matter  within  that  State,  but  mereh' 
for  the  purpose  of  reaching  property  belonging  to  Mrs.  Renier,  having 
no  tangible  existence  in  that  State.  The  authorities  cited,  as  well  as 
others  which  might  be  cited,  pretty  clearly  show  that  the  Chicago  court 
obtained  no  jurisdiction  over  that  property.  Banking  Co.  v.  Carr, 
76  Ala.  388  ;  Brauser  v.  Insurance  Co.,  21  Wis.  506.  Nor  was  it  the 
purpose  of  such  proceedings  to  reach  property'  belonging  to  the  Boston 
company.  Its  indebtedness  to  Mrs.  Renier  was  in  no  sense  its  prop- 
ert}',  but  rather  an  indication  of  the  absence  of  its  property.  In  speak- 
ing of  the  situs  of  choses  in  action  for  the  purposes  of  taxation,  Mr. 
Justice  Field  observed  that  "  to  call  debts  property  of  the  debtors  is 
simply  to  misuse  terms.  All  the  propert}*  there  can  be  in  the  nature 
of  things  in  debts  of  corporations  belongs  to  the  creditors,  to  whom 
thev  are  payable,  and  follows  their  domicile,  wherever  that  may  be. 
Their  debts  can  have  no  locality  separate  from  the  parties  to  whom 
they  are  due."  State  Tax  on  Foreign-Held  Bonds,  15  Wall.  320. 
This  principle  has  received  recent  sanction  in  this  court.  State  v. 
Gaylord,  73  Wis.  325,  41  N.   W.  Rep.  521. 

It  is  obvious  from  what  has  been  said  that,  if  the  indebtedness  of 
the  Boston  companv  to  Mrs.  Renier  lias  any  situs  outside  of  Wisconsin 
for  the  purposes  of  garnishment,  it  was  at  the  home  office  of  that  com- 
pany in  Massachusetts  ;  certainly  not  with  the  respective  agents  of 
that  company,  wherever  located  in  the  several  States.  But,  as  observed, 
that  indebtedness  was  in  the  form  of  a  judgment  recovered  b}-  Mrs. 
Renier  in  a  court  of  her  domicile  in  Wisconsin.  The  statute  of  this 
State  required  the  Boston  company  to  pay  that  judgment  to  Mrs. 
Renier  within  the  time  therein  specified.  Section  1974,  Rev.  St. ' 
Such  payment,  or  its  equivalent,  was  absolutely  essential  to  the  con- 
tinuance of  business  in  the  State.     Id.     Such  being  the  rules  of  law. 

1  Soction  1974  requires  insurance  comj)anie3  to  pay  final  ju(Jf,'ments  against  tlieni  in 
Wisconsin  within  sixty  il.ays  after  the  rendition  tliereof,  or  cease  issuinjij  policies  in  the 
.State  until  the  juil<,'itient  is  paiil,  and  makes  violations  of  the  statute  i>unislial)le  by 
forfeiture. 


412       LOUISVILLE    AND    NASHVILLE    RAILROAD    V.    NASH.       [CHAP.    IIL 

and  the  facts  being  as  stated,  we  must  hold  that  the  sitns  of  the  in- 
debtedness in  question  for  the  purposes  of  garnishment  at  the  time  of 
the  commencement  of  the  proceedings  in  the  Chicago  court  was  only 
in  Wisconsin,  where  Mrs.  Renier  resided.  This  view  is  sustained  by 
numerous  cases  cited  by  counsel  for  the  plaintiff,  among  which  are 
Wallace  v.  McConnell,  13  Pet.  136 ;  Railroad  Co.  v.  Gomila,  132 
U.S.  485;  Bank  v.  Rollin,  99  Mass.  313;  Trowbridge  v.  Means, 
5  Ark.  135;  Shinn  i\  Zimmerman,  23  N.  J.  Law,  150;  Bank  v. 
Snow,  9  R.  I.  11;  Wood  v.  Lake,  13  Wis.  84.  It  follows  that  the 
proceedings  in  the  Chicago  court  did  not  operate  as  a  bar  or  abate- 
ment of  this  action.  The  judgment  of  the  Circuit  Court  is  reversed, 
and  the  cause  remanded,  with  direction  to  enter  judgment  in  favor  of 
the  plaintiff  and  against  the  defendants  for  the  proper  amount  remain- 
ing due  and  unpaid  on  the  former  judgment,  with  interest  and  costs. ^ 


LOUISVILLE   AND   NASHVILLE   RAILROAD   v.    NASH. 

SupREMK  Court  of  Alabama.     1898. 
[Reported  118  Alabama,  477. J 

Brickell,  C.  J.'^  The  appellee,  a  resident  of  this  State,  and  an 
employe  of  appellant,  brought  this  action  against  appellant,  the 
Louisville  &  Nashville  Railroad  Company,  a  corporation  organized 
under  the  laws  of  the  State  of  Kentucky,  and  doing  business  in  that 
State,  and  also  in  Alabama  and  Tennessee,  to  recover  the  amount  of 
wages  earned  and  due  him  for  work  and  labor  done  here  for  appel- 
lant. In  defence  of  the  action,  appellant  set  up  the  payment  by  it, 
previously  to  the  commencement  of  this  suit,  of  a  judgment  rendered 
against  it  in  a  justice's  court  in  the  State  of  Tennessee  in  an  attach- 
ment suit,  founded  on  a  debt  due  in  Tennessee,  wherein  appellee 
was  defendant  and  appellant  was  summoned  to  answer  as  garnishee. 
Appellee  was  a  resident  of  Alabama  at  the  time  of  the  commence- 
ment, and  during  the  pendency,  of  said  attachment  suit,  was  not 
personally  served  with  notice  thereof,  had  no  actual  notice,  and  did 
not  voluntarily  appear,  but  service  was  had  by  publication,  in 
accordance  with  the  laws  of  Tennessee.  The  questions  presented  by 
this  appeal  are,  therefore  —  First,  whether  the  courts  of  one  State 
have,  or  can  acquire,  jurisdiction  to  attach  and  condemn  a  debt  due 
to  a  non-resident,  and  payable  in  the  State  of  his  residence,  by  ser- 
vice of  process  on  his  debtor  as  garnishee,  in  the  absence  of  personal 
service  within    the   State  of  suit  on   the  creditor  or  his   voluntary 

1  Ace.  Nat.  Bank  v.  Furtick  (Del.),  42  Atl.  479  ;  Swedish-American  Bank  v. 
Bleecker,  72  Minn.  383,  75  N.  W.  740  ;  Douglass  v.  PheuLx  Ins.  Co.,  138  N.  Y.  209, 
S3  N.  E.  938  ;  Ranney  v.  Morrow,  3  Pugs.  (N.  B.)  270.  —  Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


SECT.    III.]       LOUISVILLE    AND    NASHVILLE    KAILKOAD    V.    NASH.         413 

appearauce;  and,  second,  whether,  if  such  courts  are  without  juris- 
diction for  this  purpose,  the  paj-meut  by  the  garnishee  of  a  judgment 
rendered  against  him  as  garnishee,  under  such  circumstances,  will 
constitute  any  defence  to  a  subsequent  suit  by  his  creditor  to  recover 
the  debt. 

The  case  presented  is  ruled,  with  respect  to  both  questions,  by 
the  cases  of  Railroad  Co.  v.  Dooley,  78  Ala.  524,  and  Railroad  Co. 
r.  Chumley,  92  Ala.  317.  lu  the  former  case  it  was  held  that  a  debt 
due  by  a  foreign  corporation  to  an  employe  in  the  State  of  its  crea- 
tion, although  it  was  doing  business  in  this  State  also,  could  not  be 
subjected  by  a  creditor  in  this  State  by  attachment  against  the  non- 
resident creditor  and  garnishment  against  the  corporation.  In  the 
latter  we  decided  that  the  payment  by  a  railroad  corporation  created 
by  the  laws  of  this  State,  but  doing  business  also  in  Tennessee,  of 
a  judgment  rendered  against  it  in  Tennessee  under  a  garnishment 
issued  on  a  judgment  recovered  in  that  State  against  an  employe 
resident  in  this  State,  was  no  defence  to  an  action  by  the  employe  to 
recover  the  wages  due  him  for  work  done  in  this  State,  in  the  absence 
of  evidence  showing  that,  by  the  statutes  of  Tennessee,  the  court  had 
acquired  jurisdiction  of  the  debt  sought  to  be  reached  and  subjected, 
lu  both  of  the  above  cases  it  was  expressly  decided  that  the  situs 
of  a  debt,  for  the  purpose  of  garnishment,  is  at  the  domicile  of  the 
creditor,  and  not  that  of  the  debtor;  and  this  fact  is  the  true  foun- 
dation for  the  propositioH  that  a  State  has  no  jurisdiction  over  a 
debt  due  to  a  non-resident,  and  payable  without  the  State  of  suit,  in 
the  absence  of  personal  service  on  the  creditor  within  the  State,  or 
his  voluntary  appearance  in  a  proceeding  in  which  jurisdiction  over 
it  is  sought  to  be  exercised.  If  it  be  conceded  that  a  debt  due  by  a 
resident  of,  or  a  corporation  doing  business  in,  one  State  to  a  resi- 
dent in  another  State  is  not  property  within  the  State  of  the  debtor's 
residence,  no  legislation  by  the  latter  State  can  give  it  a  situs  there 
for  the  purpose  of  enabling  its  citizens,  or  other  persons  resorting  to 
its  courts,  to  subject  it  to  the  payment  of  claims  against  the  creditor 
by  garnishing  the  person  or  corporation  from  whom  it  is  due.  If  it 
has  no  situs  within  the  debtor's  State,  in  the  absence  of  legislation, 
any  legislation  attempting  to  give  it  such  situs,  or  to  prescribe  the 
manner  of  service  on  either  tlie  debtor  or  the  non-resident  creditor, 
by  which  jurisdiction  over  it  may  be  acquired,  uidess  by  personal 
service  on  the  creditor  within  the  State,  or  his  voluntary  appearance, 
would  be  as  nugatory  and  ineffectual  to  dispose  of  the  creditor's 
property  in  the  debt  as  would  be  legislation  attempting  to  acquire 
jurisdiction  over  tangible  property  situated  without  the  State.  The 
subject-matter  of  such  legislation,  namely,  the  property  over  whieli 
it  is  attempted  to  acquire  jurisdiction,  is  entirely  beyond  the  power 
and  contol  of  the  State.  In  the  view  we  take  of  the  question,  tiu- 
condemnation  of  a  debt  due  to  a  non-reRi<lont,  without  personal  stM- 
vice  within  the  State  of  suit  on  the  defendant,  or  owner  of  the  debt. 


414        LOUISVILLE    AND    NASHVILLE    KAILROAD    V.    NASH.       [cHAP.    IIL 

or  his  voluntary  appearance,  is  without  due  process  of  law,  and  it 
seems  manifest  that  a  State  cannot  make  that  due  process  of  law 
which  is  not  such.  Martic  v.  Railroad  Co.,  50  Hun,  347,  3  N.  Y. 
Supp.  82.  It  is  immaterial  also,  under  this  concession,  whether  the 
corporation  garnishee,  if  the  garnishee  be  a  corporation,  is  one 
created  by  the  laws  of  the  State  where  the  debt  is  sought  to  be 
condemned,  or  is  a  foreign  corporation,  doing  business  therein  by 
permission  of  the  State.  The  question  is  not  one  of  jurisdiction 
over  the  garnishee,  but  one  of  jurisdiction  over  property  situated 
without  the  State,  and,  through  the  seizure  of  such  property,  over 
the  owner  thereof. 

The  right  of  a  State  to  inquire  into  the  obligations  of  a  non- 
resident, and  its  jurisdiction  to  attach  his  property  to  answer  for 
such  obligations,  is  founded  solely  on  the  fact  that  each  State  has 
exclusive  control  and  jurisdiction  over  the  property  situated  within 
its  territorial  limits,  and  the  inquiry  can  be  carried  only  to  the  extent 
necessary  to  control  the  disposition  of  such  property.  If  there  be  no 
personal  service  on  the  defendant  or  owner  of  the  property,  or  appear- 
ance by  him,  the  jurisdiction  cannot  extend  beyond  binding  the  prop- 
erty attached  or  effects  garnished.  Consequently,  if  the  non-resident 
has  no  property  within  the  State,  and  there  has  been  no  personal 
service  on  him  within  the  State,  or  voluntary  appearance  by  him, 
there  is  nothing  upon  which  its  tribunals  can  adjudicate;  and  any 
judgment  rendered  under  such  circumstances,  whether  affecting  the 
person  only,  or  the  property  also,  would  be  void  for  want  of  juris- 
diction of  the  person  and  of  the  subject-matter.  Bank  v.  Clement, 
1U9  Ala.  280;  Pennoyer  v.  Neff,  95  U.  S.  714;  St.  Clair  v.  Cox,  106 
U.  S.  350;  Freeman  v.  Alderson,  119  U.  S.  185.  It  was  held  in 
Pennoyer  v.  Neff,  siq^m,  that,  in  a  suit  on  a  money  demand  against 
a  non-resident,  substituted  service  of  process  by  publication  is  effect- 
ual only  where,  in  connection  with  process  against  the  person  for 
the  commencement  of  the  action,  property  within  the  State  is  brought 
under  the  control  of  the  court,  and  subjected  to  its  disposition  by 
process  adapted  to  that  purpose,  or  where  the  judgment  is  sought  as 
a  means  of  reaching  said  property  or  affecting  some  interest  therein; 
and  that  a  judgment  by  default  against  a  non-resident  upon  such  ser- 
vice only,  no  property  of  the  defendant  within  the  State  having  been 
seized  prior  to  the  rendition  of  the  judgment,  was  without  due 
process  of  law,  and  void,  and  the  title  of  defendant  to  property 
within  the  State  sold  under  execution  issued  on  such  judgment  was 
not  devested  by  such  sale,  notwithstanding  the  statutes  of  the  State 
of  suit  authorized  service  in  this  manner  upon  a  non-resident,  and 
attempted  to  protect  the  title  of  a  purchaser  in  good  faith  of  prop- 
erty sold  under  execution  issued  on  such  judgment.  In  the  opinion 
by  Mr.  Justice  Field  it  is  said:  "No  State  can  exercise  direct  juris- 
diction and  authority  over  persons  or  property  without  its  territory. 
The  several  States  are  of  equal  dignity  and  authority,  and  the  inde- 


SECT.    III. J    LOUISVILLE    AND    NASHVILLE    RAILROAD    V.    NASH.  415 

pendence  of  one  implies  the  exclusion  of  power  from  all  others. 
And  so  it  has  been  laid  down  by  jurists  as  an  elementary  principle 
that  the  laws  of  one  State  have  no  operation  outside  of  its  territory, 
except  so  far  as  is  allowed  by  comity;  and  that  no  tribunal  estab- 
lished by  it  can  extend  its  process  beyond  that  territory  so  as  to  sub- 
ject either  persons  or  property  to  its  decisions.  '  And  any  exertion 
of  authority  of  this  sort  beyond  this  limit,'  says  Story,  'is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property  in  an}' 
other  tribunal.'  "  This  decision,  involving,  as  it  did,  a  construction 
of  the  fourteenth  amendment  of  the  Federal  Constitution,  and  its 
effect  on  judgments  rendered  against  non-residents  without  personal 
service  or  voluntary  appearance,  and  without  a  preliminary  seizure 
of  property  of  the  defendant  within  the  State  of  suit,  is  binding 
upon,  and  must  be  followed  by,  the  courts  of  the  several  States.  It 
necessarily  results  from  the  principles  declared  therein  that  if  the 
situs  of  a  debt  for  the  purpose  of  garnishment  be  at  the  domicile  of 
the  creditor,  and  the  debt  be  not  property  within  the  garnishee  State, 
any  judgment  rendered  against  the  creditor,  as  well  as  any  judgment 
the  effect  of  which  is,  on  its  face,  to  discharge  the  debt  due  to  the 
non-resident  by  requiring  the  debtor,  the  garnishee,  to  pay  it  to  the 
non-resident's  creditor,  is  without  due  process  of  law,  and  void, 
unless  there  was  personal  service  on  the  defendant  within  the  State 
or  a  voluntary  appearance  by  him.  It  necessarily  follows,  also,  that 
the  payment  of  such  judgment  by  the  garnishee  is  no  protection  to 
him  in  a  subsequent  suit  by  his  creditor  to  recover  the  debt,  and  that 
any  legislation  by  the  garnishee  State  attempting  to  acquire  jurisdic- 
tion over  the  debt,  by  declaring  it  to  be  property  within  its  limits, 
subject  to  seizure  by  service  of  process  on  the  garnishee  and  service 
by  publication  on  the  non-resident  defendant,  "is  a  mere  nullity, 
and  incapable  of  binding  such  persons  or  property  in  any  other 
tribunal." 

Any  attempt  to  reconcile  the  conflicting  authorities  on  the  question 
of  the  situs  of  a  debt  for  the  purpose  of  garnishment  would  be  vain, 
but  analogy,  as  well  as  reason  and  justice  to  the  creditor,  would 
seem  to  fix  it  at  the  domicile  of  the  creditor,  and  forbid  its  seizure 
or  any  change  in  the  ownership  thereof,  by  the  law  or  procedure  of 
any  other  State.  It  is  now  well  settled  that  a  debt  due  by  an  insol- 
vent to  a  non-resident  is  property  witliin  the  creditor's  State,  and 
that  no  law  or  decree  of  the  debtor's  State  discharging  his  debts  can 
operate  to  discharge  the  debt  due  to  the  non-resident.  Brown  v. 
Smart,  145  U.  S.  454;  Denny  v.  Bennett,  128  U.  S.  489;  Pattee  v. 
Paige,  163  Mass.  352;  Bank  v.  Batcheller,  151  Mass.  589;  Wilson 
'".  Matthews,  32  Ala.  345.  It  is  ecpially  well  settled  that,  for  tiie 
purpose  of  taxation,  a  del)t  has  its  situs  at  the  domicile  of  the  cred- 
itor. State  Tax  on  Foreign-Held  lionds,  15  Wall.  300;  Kirtland  v. 
JIotchkisB,  100  U.  S.  491;  In  re  Uronson's  Estate,  150  N.  Y.  1; 
Potter  V.  Koss,  23  N.  J.  Law,  517;  lioyd  r.  City  of  Selma,  96  AJa. 


416  LOUISVILLE    AND    NASHVILLE    RAILROAD  V.    NAStl.       [CHAP.    III. 

150.  In  the  opinion  of  the  State  Tax  Case  it  was  said:  "But  debts 
owing  by  a  corporation,  like  debts  owing  by  individuals,  are  not 
property  of  the  debtors  in  any  sense.  They  are  obligations  of  the 
debtors,  and  only  possess  value  in  the  hands  of  the  creditors,  — with 
them  are  property,  and  in  their  hands  they  may  be  taxed.  To  call 
debts  property  of  the  debtors  is  simply  to  misuse  terms.  All  the 
property  there  can  be,  in  the  nature  of  things,  in  the  debts  of  cor- 
porations, belongs  to  the  creditors  to  whom  they  are  payable,  and 
follows  their  domicile,  whatever  they  may  be.  Their  debts  can  have 
no  locality  separate  from  the  parties  to  whom  they  are  due."  We 
are  unable  to  perceive  any  sound  reason  for  giving  to  a  debt  a  differ- 
ent situs  for  the  purpose  of  garnishment,  and  none,  satisfactory  to 
us,  has  been  offered  by  those  decisions  which  give  it  a  different  situs 
for  this  purpose  onl3\  If  a  debt  due  to  a  non-resident  cannot  be 
discharged  by  an  insolvency  law  or  decree  of  the  debtor's  State, 
because  of  a  want  of  jurisdiction  over  the  creditor  and  the  debt,  a 
like  reason  should  forbid  its  discharge  by  garnishment  proceedings. 
Those  courts  which  adhere  to  the  contrary  view  are  not  themselves  in 
accord  as  to  the  theory  upon  which  they  can  acquire  jurisdiction  over 
such  debts.  In  some  it  is  held  that,  for  the  purpose  of  garnishment, 
a  State  has  the  power  to  fix  the  situs  of  a  debt  at  the  domicile  of  the 
debtor,  although  the  creditor  be  a  non-resident.  Williams  v.  Inger- 
soll,  89  N.  Y.  508;  Douglass  r.  Insurance  Co.,  138  N.  Y.  209; 
Bragg  V.  Gaynor,  85  Wis.  468.  As  we  have  seen  above,  the  exercise 
of  such  power  would  be  a  nullity  in  its  effect  upon  the  person  of  a 
non-resident  or  the  debt  due  him.  Others  hold  that  the  situs  of  a 
debt  is  wherever  a  suit  may  be  maintained  to  recover  it.  Harvey 
V.  Railway  Co.,  50  Minn.  406;  Manufacturing  Co.  r.  Lang,  127  Mo. 
242.  As  a  general  proposition,  this,  as  we  have  seen,  is  incorrect, 
and,  as  limited  and  applied  to  garnishments  only,  it  seems  to  us, 
merely  an  arbitrary  distinction.  Moreover,  if  its  situs  is  in  the 
State  of  the  debtor  only  by  reason  of  the  fact  that  a  suit  to  recover 
it  may  there  be  maintained,  a  debt  due  by  a  foreign  corporation 
doing  business  in  a  State  other  than  that  of  its  creation,  to  a  non- 
resident of  such  State,  could  not  be  reached  by  a  garnishment  sued 
out  in  the  State  in  the  absence  of  a  statute  expressly  authorizing  it 
to  be  sued  therein  on  a  cause  of  action  arising  without  the  State;  for 
it  is  well  settled,  as  a  general  rule,  that  no  action  in  personam  can  be 
maintained  against  a  foreign  corporation,  unless  the  contract  sued 
on  was  made  or  was  to  be  performed,  or  the  injury  complained  of 
was  suffered,  in  the  State  in  which  the  action  is  brought.  Railroad 
Co.  V.  Carr,  76  Ala.  388;  St.  Clair  v.  Cox,  106  U.  S.  350.  And  it 
has  been  expressly  held  that  a  non-resident  creditor  of  a  corporation 
cannot  have  his  property  in  a  debt  seized  in  a  State  to  which  the 
corporation  may  resort  merely  for  the  purpose  of  doing  business 
through  its  agents,  when  the  claim  arose  on  a  contract  not  to  be 
performed  within  the  State  of  suit.     Reimers  v.  Manufacturing  Co., 


SECT.    III.]  CHICAGO,    ETC.    RAILWAY    V.    STURM.  417 

17  C.  C.  A.  228,  70  Fed.  573;  Douglass  v.  Insurance  Co.,  138  N.  Y. 
209.  We  prefer  to  adhere  to  the  principle  upon  which  our  former 
cases  were  decided,  that  the  situs  of  a  debt  is  at  the- domicile  of  the 
creditor,  for  the  purpose  of  garnishment  as  well  as  for  other  purposes. 
Railroad  Co.  r.  Dooley,  78  Ala.  524;  Railroad  Co.  v.  Chuniley,  92 
Ahi.  317;  Reno,  Non-res.,  §  138  et  seq.  ;  Railroad  Co.  v.  Smith,  70 
Miss.  344,  and  notes;  Central  Trust  Co.  v.  Chattanooga,  R.  &,  C.  R. 
Co.,  68  Fed.  685;  Railway  Co.  v.  Sharitt,  43  Kan.  375;  Renier  v. 
Hurlbut,  81  Wis.  24.  Adhering  in  this  respect  to  the  situs  of  the 
debt  due  from  appellant  to  appellee,  we  are  constrained  by  the  deci- 
sions of  the  Supreme  Court  of  the  United  States,  cited  above,  to 
hold  that  the  judgment  of  the  Tennessee  court,  operating,  as  it  did, 
on  its  face,  to  condemn  and  devest  appellee's  property  in  the  debt 
over  which  it  had  not  acquired  jurisdiction  by  personal  service 
within  the  State  on  appellee,  or  by  his  voluntary  appearance,  was 
without  due  process  of  law,  and  absolutely  void  for  want  of  jurisdic- 
tion of  the  res^  the  debt,  or  of  the  person  of  its  owner.  To  such 
judgments  the  Constitution  of  the  United  States  does  not  require 
that  any  faith  and  credit  be  given;  the  constitutional  provision  that 
"full  faith  and  credit  shall  be  given  in  each  State  to  the  public  acts, 
records  and  judicial  proceedings  of  every  other  State,"  and  the  act 
of  Congress  providing  for  the  mode  of  authenticating  such  acts, 
records,  and  proceedings,  being  now  construed  as  applicable  "only 
when  the  court  rendering  the  judgment  had  jurisdiction  of  the  parties 
and  of  the  subject-matter,  and  not  to  preclude  an  inquiry  into  the 
jurisdiction  of  the  court  in  which  the  judgment  was  rendered,  or  the 
right  of  the  State  itself  to  exercise  authority  over  the  person  or 
the  subject-matter."     Pennoyer  v.   Neflf,  95  U.   S.   714,  supra. 

We  find  no  error  in  the  judgment  of  the  city  court  and  it  must  be 
affirmed. '^ 


CHICAGO,    ROCK   ISLAND   AND   PACIFIC   RAILWAY  v. 

STURM. 

Supreme  Court  of  the  United  States.     1899. 
[Reported  174  United  States,  710  ] 

The  defendant  in  error  brought  an  action  against  the  plaintiff  in 
eiTor  in  a  justices'  court  of  Belleville,  Republic  County,  Kansas,  for 
the  sum  of  Si 40,  for  wages  due.  Judgment  was  rendered  for  him 
in  the  sum  of  S140  and  interest  and  costs. 

The  plaintiff  in  error  appealed  from  the  judgment  to  the  District 
Court  of  the  count}',  to  which  court  all  the  papers  were  transmitted, 
and  the  case  docketed  for  trial. 

1  Ace.  Central  Trust  Co.  v.  C.  R  &  C.  R.  R.,  68  Fed.  685.  — Ed. 
27 


418  CHICAGO,   ETC.    KAILWAY    V.    STURM.  [CHAP.    III. 

On  the  10th  of  October,  1894,  the  case  was  called  for  trial,  when 
plaintiff  in  error  filed  a  motion  for  continuance,  supported  by  an 
affidavit  affirming  that  on  the  13th  day  of  December,  1893,  in  the 
county  of  Pottawattomie  and  State  of  Iowa,  one  A.  H.  Willard  com- 
menced an  action  against  E.  H.  Sturm  in  justices'  court  before  Oride 
Vien,  a  justice  of  the  peace  for  said  county,  to  recover  the  sum  of 
S78.63,  with  interest  at  the  rate  of  ten  per  cent  per  annum,  and  at 
the  same  time  sued  out  a  writ  of  attachment  and  garnishment,  and 
duly  garuisheed  the  plaintiff  in  error,  and  at  that  time  plaintiff  in 
error  was  indebted  to  defendant  in  error  in  the  sum  of  $77.17  for 
wages,  being  the  same  wages  sought  to  be  recovered  in  this  action ; 

That  plaintiff  in  error  filed  its  answer,  admitting  such  indebtedness  ^ 

That  at  the  time  of  the  commencement  of  said  action  in  Pottawat- 
tomie County  the  defendant  was  a  non-resident  of  the  State  of  Iowa, 
and  that  service  upon  him  was  duly  made  by  publication,  and  that 
afterwards  judgment  was  rendered  against  him  and  plaintiff  in  error 
as  garnishee  for  the  sum  of  $76.16,  and  costs  of  suit  amounting  to 
$19,  and  from  such  judgment  appealed  to  the  District  Court  of  said 
county,  where  said  action  was  then  pending  undetermined; 

That  the  moneys  sought  to  be  recovered  in  this  action  are  the  same 
moneys  sought  to  be  recovered  in  the  garnishment  proceedings,  and 
that  under  the  laws  of  Iowa  its  courts  had  jurisdiction  thereof,  and 
that  the  said  moneys  were  not  at  the  time  of  the  garnishment  exempt 
from  attachment,  execution,  or  garnishment;  that  the  justice  of  the 
peace  at  all  of  the  times  of  the  proceedings  was  a  duly  qualified  and 
acting  justice,  and  that  all  the  proceedings  were  commenced  prior  to 
the  commencement  of  the  present  action,  and  that  if  the  case  be  con- 
tinued until  the  next  term  of  the  court  the  action  in  Iowa  will  be 
determined  and  the  rights  of  plaintiff  in  error  protected. 

The  motion  was  denied,  and  the  plaintiff  in  error  pleaded  in 
answer  the  same  matters  alleged  in  the  affidavit  for  continuance,  and 
attached  to  the  answer  a  certified  copy  of  the  proceedings  in  the  Iowa 
courts.  It  also  alleged  that  it  was  a  corporation  duly  organized 
under  the  laws  of  the  States  of  Illinois  and  Iowa,  doing  business  in 
the  State  of  Kansas. 

The  defendant  in  error  replied  to  the  answer,  and  alleged  that  the 
amount  due  from  plaintiff  in  error  was  for  wages  due  for  services 
rendered  within  three  months  next  prior  to  the  commencement  of  the 
action;  that  he  was  a  resident,  head  of  a  family,  and  that  the  wages 
were  exempt  under  the  laws  of  Kansas,  and  not  subject  to  garnish- 
ment proceedings ;  that  plaintiff  in  error  knew  these  facts,  and  that 
the  Iowa  court  had  no  jurisdiction  of  his  property  or  person. 

Evidence  was  introduced  in  support  of  the  issues,  including  cer- 
tain sections  of  the  laws  of  Iowa  relating  to  service  by  publication, 
and  to  attachment  and  garnishment,  and  judgment  was  rendered  for 
the  defendant  in  error  in  the  amount  sued  for. 

A  new  trial  was  moved,  on  the   ground,  among   others,  that  the 


SECT.    III."]  CHICAGO,   ETC.    RAILWAY   V.    STURM.  419. 

"decision  is  contrary  to  and  in  conflict  with  section  1,  article  IV., 
of  the  Constitution  of  the  United  States." 

The  motion  was  denied. 

On  error  to  the  Court  of  Appeals,  and  from  thence  to  the  Supreme 
Court,  the  judgment  was  atlirmed,  and  the  case  was  then  brought 
here. 

The  defendant  in  error  was  notified  of  the  suit  against  him  in 
Iowa  and  of  the  proceedings  in  garnishment  in  time  to  have  pro- 
tected his  rights. 

The  errors  assigned  present  in  various  ways  the  contention  that 
the  Supreme  Court  of  Kansas  refused  to  give  full  faith  and  credit  to 
the  records  and  judicial  proceedings  of  the  courts  of  the  State  of 
Iowa,  in  violation  of  section  1,  article  IV.,  of  the  Constitution  of  the 
United  States,  and  of  the  act  of  Congress  entitled  "An  act  to  pre- 
scribe the  mode  in  which  the  public  acts,  records,  and  judicial  pro- 
ceedings in  each  State  shall  be  authenticated  so  as  to  take  effect  in 
every  other  State,"  approved  May  26,  1790. 

Mr.  W.  F.  Evans  and  Mr.  31.  A.  Low  for  plaintiff  in  error. 

No  appearance  for  defendant  in  error. 

Mr.  Justice  McKenna,  after  making  the  foregoing  statement, 
delivered  the  opinion  of  the  court. 

How  proceedings  in  garnishment  may  be  availed  of  in  defence  — 
whether  in  abatement  or  bar  of  the  suit  on  the  debt  attached  or  for  a 
continuance  of  it  or  suspension  of  execution  —  the  practice  of  the 
States  of  the  Union  is  not  uniform.  But  it  is  obvious  and  necessary 
justice  that  such  proceedings  should  be  allowed  as  a  defence  in  some 
way. 

In  the  pending  suit  plaintiff  in  error  moved  for  a  continuance,  and 
not  securing  it  pleaded  the  proceedings  in  garnishment  in  answer. 
Judgment,  however,  was  rendered  against  it,  and  sustained  by  the 
Supreme  Court,  on  the  authority  of  Missouri  Pacific  Railway  Co.  v. 
Sharitt,  43  Kansas,  375,  and  "for  the  reasons  stated  by  Mr.  Justice 
Valentine  in  that  case." 

The  facts  of  that  case  were  as  follows :  The  Missouri  Pacific  Rail- 
way Company  was  indebted  to  Sharitt  for  services  performed  in 
Kansas.  Sharitt  was  indebted  to  one  J.  P.  Stewart,  a  resident  of 
Missouri.  Stewart  sued  him  in  Missouri,  and  attached  his  wages  in 
the  hands  of  the  railway  company,  and  the  latter  answered  in  the 
suit  in  accordance  with  the  order  of  garnishment  on  the  28th  of  July, 
1887,  admitting  indebtedness,  and  on  the  29th  of  September  was 
ordered  to  pay  its  amount  into  court.  On  the  27th  of  July  Sharitt 
brought  an  action  in  Kansas  against  the  railway  company  to  recover 
for  his  services,  and  tlie  company  in  defence  pleaded  the  garnish- 
ment and  order  of  the  Missouri  court.  The  amount  due  Sharitt  hav- 
ing been  for  wages,  was  exempt  from  attachment  in  Kansas.  It 
was  held  that  the  garnishment  was  not  a  defence.  The  facts  were 
similar  therefore  to  those  of  the  "^^.se  at  bar. 


.420  CHICACxO     ETC.    RAILWAY   V.    STURM.  [CHAP.    III. 

The  ground  of  the  opinion  of  Mr.  Justice  Valentine  was  that  the 
Missouri  court  had  no  jurisdiction  because  the  situs  of  the  debt  was 
in  Kansas.  In  other  words,  and  to  quote  the  language  of  the  learned 
justice,  "the  situs  of  a  debt  is  either  with  the  owner  thereof,  or  at 
his  domicile;  or  where  the  debt  is  to  be  paid;  and  it  cannot  be  sub- 
jected to  a  proceeding  in  garnishment  anywhere  else.  ...  It  is  not 
the  debtor  who  can  carry  or  transfer  or  transport  the  property  in  a 
debt  from  one  State  or  jurisdiction  into  another.  The  situs  of  the 
property  in  a  debt  can  be  changed  only  by  the  change  of  location  of 
the  creditor  who  is  the  owner  thereof,  or  with  his  consent." 

The  primary  proposition  is  that  the  situs  of  a  debt  is  at  the  domi- 
cile of  a  creditor,  or,  to  state  it  negatively,  it  is  not  at  the  domicile 
of  the  debtor. 

The  proposition  is  supported  by  some  cases;  it  is  opposed  by 
others.  Its  error  proceeds,  as  we  conceive,  from  confounding  debt 
and  credit,  rights  and  remedies.  The  right  of  a  creditor  and  the 
obligation  of  a  debtor  are  correlative  but  different  things,  and  the  law 
in  adapting  its  remedies  for  or  against  either  must  regard  that 
difference.  Of  this  there  are  many  illustrations,  and  a  proper  and 
accurate  attention  to  it  avoids  misunderstanding.  This  court  said 
by  Mr.  Justice  Gray  in  Wyman  v.  Halstead,  109  U.  S.  654,  656: 
"The  general  rule  of  law  is  well  settled,  that  for  the  purpose  of 
founding  administration  all  simple  contract  debts  are  assets  at  the 
domicile  of  the  debtor."  And  this  is  not  because  of  defective  title 
in  the  creditor  or  in  his  administrator,  but  because  the  policy  of  the 
State  of  the  debtor  requires  it  to  protect  home  creditors.  Wilkins  v. 
Ellett,  9  Wall.  740;  108  U.  S.  256.  Debts  cannot  be  assets  at  the 
domicile  of  the  debtor  if  their  locality  is  fixed  at  the  domicile  of  the 
creditor,  and  if  the  policy  of  the  State  of  the  debtor  can  protect 
home  creditors  through  administration  proceedings,  the  same  policy 
can  protect  home  creditors  through  attachment  proceedings. 

For  illustrations  in  matters  of  taxation,  see  Kirtland  v.  Hotchkiss, 
100  U.  S.  491;  Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S.  18; 
Savings  and  Loan  Society  v.  Multnomah  County,  169  U.  S.  421. 

Our  attachment  laws  had  their  origin  in  the  custom  of  London. 
Drake,  §  1.  Under  it  a  debt  was  regarded  as  being  where  the  debtor 
was,  and  questions  of  jurisdiction  were  settled  on  that  regard.  In 
Andrews  v.  Clerke,  1  Carth.  25,  Lord  Chief  Justice  Holt  summarily 
decided  such  a  question,  and  stated  the  practice  under  the  custom  of 
London.     The  report  of  the  case  is  brief,  and  is  as  follows:  — 

"Andrews  levied  a  plaint  in  the  sheriff's  court  in  London  and, 
upon  the  usual  suggestion  that  one  T.  S.  (the  garnishee)  was  debtor 
to  the  defendant,  a  foreign  attachment  was  awarded  to  attach  that 
debt  in  the  hands  of  T.  S.,  which  was  accordingly  done;  and  then  a 
diletur  was  entered,  which  is  in  nature  of  an  imparlance  in  that  court. 
"Afterwards  T.  S.  (the  garnishee)  pleaded  to  the  jurisdiction  set- 
ting forth  that  the  cause  of  debt  due  from  him  to  the  defendant  Sir 


SECT.    III.]  CHICAGO,    ETC.    RAILWAY    V.    STURM.  421 

Robert  Gierke,  and  the  contract  on  which  it  was  founded,  did  arise, 
and  was  made  at  II.  in  the  county  of  Middlesex,  extra  jurisdictionem 
ruriir  :  and  this  plea  being  overruled,  it  was  now  moved  (in  behalf 
of  T.  S.,  the  garnishee)  for  a  prohibition  to  the  sheriff's  court 
aforesaid,  suggesting  the  said  matter,  (viz.)  that  the  cause  of  action 
did  arise  extra  jurisdictionem^  etc.,  but  the  prohibition  was  denied 
because  the  debt  always  follows  the  person  of  the  debtor,  and  it  is 
not  material  where  it  was  contracted,  especially  as  to  this  purpose 
of  foreign  attachments ;  for  it  was  always  the  custom  in  London  to 
attach  debts  upon  bills  of  exchange,  and  goldsmith's  notes,  etc.,  if 
the  goldsmith  who  gave  the  note  on  the  person  to  whom  the  bill  is 
directed,  liveth  within  the  city  without  any  respect  had  to  the  place 
where  the  debt  was  contracted." 

The  idea  of  locality  of  things  which  may  be  said  to  be  intangible 
is  somewhat  confusing,  but  if  it  be  kept  up  the  right  of  the  creditor 
and  the  obligation  of  the  debtor  cannot  have  the  same,  unless  debtor 
and  creditor  live  in  the  same  place.  But  we  do  not  think  it  is  neces- 
sary to  resort  to  the  idea  at  all  or  to  give  it  important  distinction. 
The  essential  service  of  foreign  attachment  laws  is  to  reach  and 
arrest  the  payment  of  what  is  due  and  might  be  paid  to  a  non- 
resident to  the  defeat  of  his  creditors.  To  do  it  he  must  go  to  the 
domicile  of  his  debtor,  and  can  only  do  it  under  the  laws  and  pro- 
cedure in  force  there.  This  is  a  legal  necessity,  and  considerations 
of  situs  are  somewhat  artificial.  If  not  artificial,  whatever  of  sub- 
stance there  is  must  be  with  the  debtor.  He  and  he  only  has  some- 
thing in  his  hands.  That  something  is  the  res,  and  gives  character 
to  the  action  as  one  in  the  nature  of  a  proceeding  in  rem.  Mooney 
V.  Buford  &  George  Mfg.  Co.,  72  Fed.  Rep.  32;  Conflict  of  Laws, 
§  549,  and  notes. 

To  ignore  this  is  to  give  immunity  to  debts  owed  to  non-resident 
creditors  from  attachment  by  their  creditors,  and  to  deny  necessary 
remedies.     A  debt  may  be  as  valuable  as  tangible  things.     It  is  not 
capable  of  manual  seizure,  as  they  are,  but  no  more  than  they  can 
it  be  appropriated  by  attachment  without  process  and  the  power  to 
execute  the  process,      A  notice  to  the  debtor  must  be  given,  and  can 
only  be  given  and  enforced  where  he  is.     This,  as  we  have  already 
said,  is  a  necessity,  and  it  cannot  be  evaded  by  the  insistence  upon 
fictions  or  refinements  about  situs  or  the  rights  of  the  creditor.     Of 
course,  the  debt  is  the  property  of  the  creditor,  and  because  it  is, 
the  law  seeks  to  sul)ject  it,  as  it  does  other  property,  to  the  payment 
of  his  creditors.     If  it  can  be  done  in  any  other  way  than  by  process 
against  and  jurisdiction  of  his  debtor,  that  way  does  not  occur  to  us. 
Besides  the  proposition  which  we  have  discussed  tiiere  are  involved 
in  tlie  decision  of  the  Sharitt  case  the  piopositions  that  a  debt  may 
liave  a  situs  where  it  is  payable,  and  tliul  it  cannot  be  made  migra- 
tory })y  the  debtor.     Tlie  latter  was    probably  expressed  as  a  con- 
sequence of  tlie  primary  proixjsition  and  does  not  require  separate 


422  CHICAGO,   ETC.     RAILWAY   V.    STURM.'  [CHAP.    III. 

consideration.  Besides  there  is  no  fact  of  change  of  domicile  in  the 
case.  The  plaintiff  in  error  was  not  temporarily  in  Iowa.  It  was 
an  Iowa  corporation  and  a  resident  of  the  State,  and  was  such  at  the 
time  the  debt  sued  on  was  contracted,  and  we  are  not  concerned  to 
inquire  whether  the  cases  which  decide  that  a  debtor  temporarily 
in  a  State  cannot  be  garnished  there,  are  or  are  not  justified  by 
principle. 

The  proposition  that  the  situs  of  a  debt  is  where  it  is  to  be  paid, 
is  indefinite.  "All  debts  are  payable  everywhere,  unless  there  be 
some  special  limitation  or  provision  in  respect  to  the  payment;  the 
rule  being  that  debts  as  such  have  no  locus  or  situs,  but  accompany 
the  creditor  everywhere,  and  authorize  a  demand  upon  the  debtor 
everywhere."  2  Parsons  on  Contracts,  8th  edition,  702.  The  debt 
involved  in  the  pending  case  had  no  "special  limitation  or  provision 
in  respect  to  payment."  It  was  payable  generally  and  could  have 
been  sued  on  in  Iowa,  and  therefore  was  attachable  in  Iowa.  This 
is  the  principle  and  effect  of  the  best  considered  cases  —  the  inevi- 
table effect  from  the  nature  of  transitory  actions  and  the  purpose  of 
foreign  attachment  laws  if  we  would  enforce  that  purpose.  Embree 
V.  Hanna,  5  Johns.  101;  Hull  v.  Blake,  13  Mass.  153;  Blake  v.  Wil- 
liams, 6  Pick.  286;  Harwell  v.  Sharp,  85  Georgia,  124;  Harvey  v. 
Great  Northern  Railway  Co.,  50  Minnesota,  405;  Mahany  u.  Kephart, 
15  W.  Va.  609;  Leiber  ;;.  Railroad  Co.,  49  Iowa,  688;  National  Fire 
Ins.  Co.  V.  Chambers,  53  N.  J.  Eq.  468;  Holland  v.  Mobile  &  Ohio 
Railroad,  84  Tenn.  414;  Pomeroy  v.  Rand,  McNall}',  &  Co.,  157 
Illinois,  176;  Berry  Bros.  v.  Nelson,  Davis,  &  Co.,  77  Texas,  191; 
Wyeth  Hardware  Co.  v.  Lang,  127  Missouri,  242;  Howland  v.  Chi- 
cago, Rock  Island,  &c.  Railway,  134  Missouri,  474. 

Mr.  Justice  Valentine  also  expressed  the  view  that  "if  a  debt  is 
exempt  from  a  judicial  process  in  the  State  where  it  is  created,  the 
exemption  will  follow  the  debt  as  an  incident  thereto  into  any  other 
State  or  jurisdiction  into  which  the  debt  may  be  supposed  to  be 
carried."     For  this  he  cites  some  cases. 

It  is  not  clear  whether  the  learned  justice  considered  that  the  doc- 
trine affected  the  jurisdiction  of  the  Iowa  courts  or  was  but  an 
incident  of  the  law  of  situs  as  expressed  by  him.  If  the  latter,  it 
has  been  answered  by  what  we  have  already  said.  If  the  former, 
it  cannot  be  sustained.  It  may  have  been  error  for  the  Iowa  court 
to  have  ruled  against  the  doctrine,  but  the  error  did  not  destroy 
jurisdiction.      134  Missouri,  474. 

•  But  we  do  not  assent  to  the  proposition.  Exemption  laws  are  not 
a  part  of  the  contract;  they  are  part  of  the  remedy  and  subject  to 
the  law  of  the  forum.  Freeman  on  Executions,  sec.  209,  and  cases 
cited;  also  Mineral  Point  Railroad  v.  Barron,  83  Illinois,  365;  Car- 
son V.  Railway  Co.,  88  Tennessee,  646;  Couley  v.  Chilcote,  25  Ohio 
St.  320;  Albrecht  v.  Treitschke,  17  Nebraska,  205;  O'Connor  v. 
Walter,   37    Nebraska,    267;    Chicago,   Burlington,  &c.   Railroad   v 


SECT.    III.]      EINWOLD  V.  THE  GERMAN  WEST  AFRICAN  COMPANY.      423 

Moore,  31  Nebraska,  629;  Moore  v.  Chicago,  Rock  Island,  &c.  Rail- 
road, 43  Iowa,  385;  Broadstreet  r.  Clark,  D.  &  C.  M.  &  St.  Paul 
Railroad,  Garnishee,  65  Iowa,  670;  Stevens  v.  Brown,  5  West  Vir- 
ginia, 450.  See  also  Bank  of  United  States  v.  Donnally,  8  Pet. 
361;  Wilcox  c.  Hunt,  13  Pet.  378;  Townsend  v.  Jemison,  9  How. 
407;  Walworth  v.  Harris,  129  U.  S.  365;  Penfield  v.  Chesapeake, 
Ohio,  &c.  Railroad,  134  U.  S.  351.  As  to  the  extent  to  which  lex 
fori  governs,  see  Conflict  of  Laws,  571  ef  seq. 

There  are  cases  for  and  cases  against  the  proposition  that  it  is  the 
duty  of  a  garnishee  to  notify  the  defendant,  his  creditor,  of  the 
pendency  of  the  proceedings,  and  also  to  make  the  defence  of  exemp- 
tion, or  he  will  be  precluded  from  claiming  the  proceedings  in 
defence  of  an  action  against  himself.  We  need  not  comment  on  the 
cases  or  reconcile  them,  as  such  notice  was  given  and  the  defence 
was  made.  The  plaintiff  in  error  did  all  it  could  and  submitted  only 
to  the  demands  of  the  law. 

In  Broadstreet  v.  Clark,  65  Iowa,  670,  the  Supreme  Court  of  the 
State  decided  that  exemption  laws  pertained  to  the  remedy  and  were 
not  a  defence  in  that  State.  This  ruling  is  repeated  in  Willard  i\ 
Sturm,  98  Iowa,  555,  and  applied  to  the  proceedings  in  garnishment 
now  under  review. 

It  follows  from  these  views  that  the  Iowa  court  had  jurisdiction, 
and  that  the  Kansas  courts  did  not  give  to  the  proceedings  in  Iowa 
the  faith  and  credit  they  had  there,  and  were  hence  entitled  to  in 
Kansas. 

The  judgment  is  reversed  and  the  case  remanded  for  further  pro- 
ceedings  not  inconsistent  with  this  opinion.^ 


EINWOLD  V.  THE   GERMAN  WEST  AFRICAN  COMPANY. 

Supreme  Court  of  the  Cape  of  Good  Hope.     1887. 
[Reported  5  Juta,  86.] 

This  was  a  motion  to  attach  certain  goods  belonging  to  the  German 
West  African  Company  to  found  jurisdiction. 

The  company  consisted  of  Germans,  and  was  established  at  Berlin, 
and  a  trading  expedition  had  been  fitted  out  by  them  under  the  direc- 
tion of  Baron  von  Steineker,  and  the  plaintiff,  who  was  also  a  German, 
had  been  engaged  upon  the  expedition.  The  goods  had  been  sent  to 
Cape  Town,  where  a  vessel  was  to  he  chartered  to  carry  them  (o  Wal- 
wich  Bay.  From  there  the  expedition  was  to  proceed  to  Ovaiiipcjland 
—  independent  territory  —  where  a  station  was  to  be  erected,  and  cer- 

1  Anc.  Cross  v.  Brown,  19  R.  I.  220,  33  Atl.  147  ;  M.  &  0.  R.  R.  v.  r.ainliill,  91 
Tniin.  395,  19  S.  W,  21 ;  and  see  Wyeth  II.  &.  M.  Co.  v.  Lang,  127  Mo.  242,  29  S.  W. 
1010.  — En. 


424      EINWOLD  V.  THE  GERMAN  WEST  AFRICAN  COMPANY.       [CHAP.  III. 

tain  of  the  expedition  wei-e  then  to  proceed  to  the  Zambesi.  The  plain- 
tiff had  been  engaged  principall}*  as  guide,  on  account  of  liis  knowledge 
of  the  interior.  He  was  to  receive  a  certain  salary-,  to  commence  from 
the  time  the  expedition  arrived  at  Walwich  Bay  ;  £5  were  to  be  paid 
him  for  expenses  to  Cape  Town,  and  Steineker  had  also  received  £100 
for  the  expenses  of  the  members  of  the  expedition  at  Cape  Town.  At 
the  latter  place  Steineker  dismissed  the  plaintiff  from  the  company's 
service,  without  making  these  payments,  and  he,  alleging  he  was  about 
to  bring  an  action  against  the  companj-  for  wrongful  dismissal,  now 
made  the  present  application.  Neither  the  plaintiff  nor  Steineker  was 
domiciled  here.^ 

De  Villiers,  C.J.  This  matter  was  brought  before  me  in  the  course 
of  last  week  in  the  form  of  an  application  to  restrain  the  respondent 
company  from  removing  the  160  cases  which  are  now  at  the  docks,  on 
the  ground  that  it  is  the  intention  of  the  applicant  to  bring  an  action 
for  damages  for  breach  of  contract.  I  at  once  refused  to  make  any 
order  on  such  an  application,  because  the  fact  that  goods  belonging  to 
the  respondent  are  in  this  Colony  gives  the  applicant  no  right  to  arrest 
these  goods.  The  form  of  the  application  has  now  been  altered,  and 
the  arrest  of  the  goods  is  sought  on  the  grounds  that  the  applicant 
wishes  to  obtain  jurisdiction  by  means  of  attachment,  and  that  the  at- 
tachment is  really  for  the  purpose  of  founding  jurisdiction  in  this  court. 
The  question  now  to  be  determined  is  whether  this  court  ought,  at  the 
instance  of  a  foreigner  not  resident  in  this  Colonv,  to  attach  property 
belonging  to  another  non-resident  foreigner,  for  the  purpose  of  found- 
ing jurisdiction  in  an  action  intended  to  be  instituted  here  for  the  pur- 
pose of  recovering  damages  for  the  breach  of  a  contract  entered  into  in 
a  foreign  countrv.  The  question  has  been  somewhat  complicated  by 
the  further  question  whether  the  contract,  although  entered  into  in  Ger- 
many, is  not  one  which  must  be  performed  in  this  Colony  ;  but  it  is 
clear,  from  the  applicant's  own  affidavit,  that  he  was  engaged  to  per- 
form certain  services  in  Ovampoland,  and  other  native  territories  in  the 
interior  of  Africa  which  are  admitted  to  be  beyond  the  jurisdiction  of 
this  court.  The  expedition  started  from  Hamburg,  and  the  fact  that 
the  starting-point  in  Africa  is  Walwich  Bay,  which  is  within  the 
Colony,  does  not  justify  the  court  in  the  holding  that  the  contract  is  to 
be  performed  within  the  jurisdiction.  The  same  remark  applies  to  the 
circumstance,  that  a  portion  of  the  applicant's  travelling  expenses  was 
to  l)e  paid  upon  the  arrival  of  the  expedition  in  Cape  Town.  The  ex- 
pedition was  to  use  certain  ports  of  this  Colony,  as  ports  of  lading,  for 
the  purpose  of  reaching  its  ultimate  destination,  which  was  the  interior 
of  Africa,  where  the  whole  of  its  business  was  to  be  carried  on.  The 
alleged  breach  of  contract  consists,  not  in  refusing  to  pay  the  small 
sum  payable  on  arrival  in  Cape  Town,  but  in  dismissing  the  applicant 
altogether,  and  preventing  him  from  joining  the  expedition  into  the  in- 
terior.    The  30th  section  of  the  Charter  of  Justice  enacts  that  the  Su- 

1  Ai-"uraents  of  counsel  are  omitted.  —  Ed. 


SECT.    III.]      EINWOLD  V.  THE  GERMAN"  WEST  AFRICAN  COMPANY.       425 

preme  Court  ''  shall  have  cognizance  of  all  pleas,  and  jurisdictiou  in  all 
causes,  wliether  civil,  criminal,  or  mixed,  arising  within  the  said  Colony, 
with  jurisdiction  over  our  subjects,  and  all  other  persons  whomsoever, 
residing  and  being  within  the  said  Colony,  in  as  full  and  ample  a  man- 
ner and  to  all  intents  and  purposes,  as  the  Supreme  Court  now  existing 
within  the  said  Colony  now  hath  or  can  lawfully  exercise  the  same."  It 
has  never  been  understood  in  this  court  that  this  section  excludes  the 
jurisdiction  acquired  over  persons,  not  domiciled  in  this  Colony,  b}' 
means  of  an  attachment  of  their  person  or  propert\-  ad  fundandam 
(or  to  use  Voet's  expression,  which  more  correctly  expresses  the  mod- 
ern practice,  ad finnandavi)  jurisdictionem.  But  I  am  not  aware  of  a 
single  case  in  this  court,  in  which  sucli  an  attachment  has  been  issued, 
for  the  purpose  of  establishing  a  jurisdiction,  for  which  no  other  legal 
ground  existed.  In  the  case  of  Hornblow  v.  Fotheringham  (1  Menzies, 
36.3),  Menzies,  J.,  expressed  grave  doubt  whether  the  court  should  use 
its  process  of  arrest,  at  the  instance  oZ  2,  peregrinus,  in  order  to  create 
a  jurisdiction  which,  without  such  arrest,  it  would  not  possess.  In 
Heinaman  v.  Jenkins  (2  Searle,  10),  Bell,  J.,  discharged  a  writ  of  arrest 
which  had  been  granted  against  an  American  ship,  calling  at  the  port  of 
Table  Bay,  in  respect  of  a  contract  entered  into  at  New  York,  to  be 
fulfilled  in  Melbourne.  It  is  true  that  tlie  arrest  in  that  case  had  been 
made  under  the  8th  Rule  of  court,  and  that  the  learned  judge  at  first 
decided  to  discharge  the  arrest  upon  grounds,  which  are  not  supported 
by  the  terms  of  the  Rule,  or  by  the  invariable  practice  of  the  court,  but 
upon  the  simple  question  of  jurisdiction  his  final  decision  certainly  did 
not  support  the  present  applicant's  contention.  In  Wilhelm  v.  Francis 
(Buchanan's  Rep.,  1876,  p.  216),  where  the  plaintiff  and  defendant  re- 
sided out  of  the  jurisdiction  of  the  court,  and  the  contract  between  them 
had  been  entered  into  beyond,  and  was  not  to  be  performed  in  the 
Colon}',  this  court  refused  to  order  the  attachment  of  property  for  the 
purpose  of  founding  jurisdiction.  Two  cases  have  been  cited  which  at 
first  sight  might  appear  to  support  the  applicant's  contention,  but  when 
closely  examined  they  will  be  found  not  to  have  anj-  real  application. 
In  Dunell  v.  Van  der  Plank  (3  Menz.  112),  the  headnote  states  that 
arrest  of  a  ship  to  found  jurisdiction  was  "granted  at  the  instance  of 
an  English  creditor  on  an  English  contract ;  "  l)ut,  from  the  case  itself, 
it  would  a|)pear  that  tlie  plaintiffs  on  the  record  were  not  English  cred- 
itors, but  persons  domiciled  in  the  Colony.  The  defendant's  counsel 
indeed  argued  that  the  real  plaintiffs  were  English  creditors,  but  the 
court  does  not  appear  to  have  adopted  this  view.  It  is  true  tliat  Men- 
zies. J.,  held  tliat  the  attachment  ought  to  be  granted,  even  if  applied  for 
by  the  plaintiffs  as  attorneys  for  tlie  English  creditors  ;  but  this  was  not 
the  true  ground  of  tlic  decision,  and  his  dictum  is  not  quite  consistent 
with  the  view  expressed  by  hini  in  the  previous  case  of  Hornblow  v. 
Fotheringham.  In  Poultney  v.  Van  Santen  (Buch.  Rep.,  1874,  p.  76), 
a  rule  was  made  absolute  attaching  the  proceeils  of  the  sale  of  an 
aliandoned  ship,  pending  an  action  by  a  passenger  for  damages  arising 


426      EINWOLD  V.  THE  GERMAN  WEST  AFKICAN  COMPANY.      [CHAP.    III. 

from  the  non-completion  of  the  voyage  from  Buenos  Ayres  to  New 
South  Wales,  the  passage  having  been  taken  in  Buenos  Ayres.  There, 
however,  no  objection  was  taken  to  the  jurisdiction  of  this  court,  but, 
on  the  contrary,  the  defendant  had  submitted  to  the  jurisdiction  by 
tendering  a  certain  sum  as  damages,  with  the  costs  incurred  in  this 

court. 

By  applying  for  an  order  to  attach  property  to  found  jurisdiction, 
the  applicant  in  the  present  case  virtually  admits  that  without  such  an 
attachment  the  court  would  not  possess  sufficient  jurisdiction.     AVhat, 
then,  are  tlie  grounds  upon  which  the  jurisdiction  of  this  court  can  be 
exercised,  in  respect  of  any  contract  over  any  defendant  without  his 
consent,  express  or  implied  ?      The,  grounds  are  threefold  ;  viz.   by 
virtue  of  the  defendant's  domicile  being  here,  by  virtue  of  the  contract 
either  having  been  entered  into  here  or  having  to  be  performed  here, 
and  by  virtue  of  the  subject-matter  in  an  action  in  rem  being  situated 
in  this"^  Colony.     If  the  defendant  is  domiciled  here,  the  process  of  at- 
tachment is  wholly  unnecessary  ;  but,  in  the  absence  of  such  domicile, 
the  invariable  practice  in  this  court  has  been  to  attach  the  person  or  the 
property  of  the  defendants,  for  the  purpose  of  founding  jurisdiction, 
even  where  either  of  the  two  latter  requisites  is  present.     In  the  pres- 
ent case,  every  one  of  the  three  requisites  is  wanting.    Ought  the  court 
then  to  supply  the  defect,  by  issuing  its  process  for  the  attachment  of 
property  belonging  to  the  respondent,  which  happens  to  be  in  the  Col- 
ony in  its  transit  to  the  interior  ?    Such  a  process  was  wholly  unknown 
to  the  Roman  law,  which,  however,  allowed  a  defendant  to  be  sued  in 
the  courts  of  the  country  where  the  contract  was  entered  into,  or  agreed 
to  be  performed.     The  canon  law,  according  to  Groenewegen  (ad  Cod. 
3,  13,  2),  did  not  allow  a  person  to  be  sued  in  the  country  of  the  con- 
tract unless  found  there,  and  this  rule,  he  adds,  "  is  consistent  with  the 
customs  of  ourselves  and  other  nations."     And  in  another  passage  (ad 
Cod.  3,  18)  he  says:  "Our  ancestors  have  deemed  it  unjust  and  con- 
trary to  all  reasons  to  send  their  sickle  into  the  harvest  of  another  juris- 
diction, under  the  pretext  of  their  own  country  being  the  place  where  a 
wrong  was  committed,  or  the  place  where  a  contract  was  entered  into, 
or  intended  to  be  performed."     He  adds  :  "  I  have  no  doubt  whatever 
that  this  custom  of  ours  has  given  rise  to  the  modern  practice  of  arrest- 
ing debtors,  than  which  nothing  is  more  common."     The  practice  of 
arresting  debtors  or  attaching  their  property  in  order  to  found  jurisdic- 
tion was  well  established  in  Holland,  in  the  time  of  Voet;  but  it  is  by 
no  means  clear  to  me,  from  the  Dutch  cases  I  have  consulted,  that  it 
was  ever  actually  exercised  where  the  contract  had  been  entered  into 
and  was  to  be  performed  elsewhere  than  in  Holland.    In  actions  in  rem 
it  was  of  course  a  common  practice  to  attach  property  situate  in  Hol- 
land for  the  purpose   of  confirming  jurisdiction.     In  regard  to  this 
Colony  having  regard  to  the  terms  of  the  30th  section  of  the  Charter  of 
Justice,  and  to  the  practice  of  modern  nations,  I  am  of  opinion  that 
jurisdiction  ought  not  to  be  assumed  by  this  court,  in  cases  where  not 


SECT.  III.]  HARRIS   V.    BALK.  427 

one  of  the  requisite  grounds  which  I  hiive  enumerated  is  present.  In 
England  tlie  ijrocess  of  attacliuient  to  found  jurisdiction  is  unlinown, 
but  the  jurisdiction  assumed  by  the  courts  is  wider  than  in  an}-  other 
country.  I  doubt,  however,  whether  even  in  England  jurisdiction  would 
be  exercised  in  a  case  like  the  present.  In  Cookney  c  Anderson  (31 
Beav.  452),  a  bill  was  filed  in  England  to  administer  the  trusts  of  a 
Scotch  creditor's  deed,  under  which  a  mining  concern  in  Scotland  was 
to  be  carried  on  by  a  trustee.  All  the  parties  except  the  plaintiff  were 
domiciled  in  Scotland,  but  an  order  had  been  obtained  to  serve  the  bill 
there.  The  defendants  appeared  and  demurred  to  the  jurisdiction.  The 
demurrer  was  allowed  by  Sir  John  Romilly,  Master  of  the  Rolls,  and 
his  decision  was  affirmed  by  Lord  Westbury,  Lord  Chancellor.  "  I 
think,"  said  the  Master  of  the  Rolls,  "  the  principles  which  govern  the 
jurisdiction  of  the  court  over  parties  to  contracts  is  analogous  to  those 
of  the  civil  law,  which,  as  far  as  I  am  aware,  have  been  adopted  by  all 
modern  nations.  They  are  described  by  all  writers  to  consist  of  three 
circumstances,  any  one  of  which  will  give  jurisdiction  to  the  tribunals  of 
the  country  to  take  cognizance  of  the  matter.  The  first  is,  where  the 
domicile  of  the  defendant  is  within  the  jurisdiction  of  the  court.  The 
second  is  where  the  subject-matter  is  situated  within  the  jurisdiction  of 
the  court.  And  the  third  is  where  the  contract  in  question  was  entered 
into  within  the  jurisdiction  of  the  court."  He  then  points  out  the  in- 
convenience arising  from  the  difficulty  of  ascertaining  the  Scotch  law 
in  an  English  court,  and  of  enforcing  the  mandates  of  the  court  against 
a  person  domiciled  in  Scotland,  and  continues  thus,  "  It  would  be,  as  I 
apprehend,  an  unprecedented  event  in  the  records  of  this  court,  if  two 
foreigners  should  enter  into  a  contract  relating  to  foreign  affairs  to  be 
performed  in  their  own  country,  that  this  court  would  allow  one  of  them 
to  sue  the  other  with  reference  to  that  contract  in  the  English  tribu- 
nals. .  .  .  The  forum  domicilii,  \hQ  forum  rei  sitce,  and  forum  loci 
cn/ttractus  are  all  wanting,  and  I  can  find  no  case  or  authority  which 
would  maintain  such  an  exercise  of  the  jurisdiction  of  this  court." 

But,  quite  independently  of  the  English  practice,  I  am  satisfied,  for 
the  reasons  already  given,  that  the  present  is  not  a  case  in  which  the 
court  should  issue  its  process  for  the  attachment  of  a  foreigner's  prop- 
erty for  the  purpose  of  confirming  or  establishing  jurisdiction  over  him. 
The  application  must  therefore  be  refused  with  costs.^ 


HARRIS   V.   BALK. 
St'I'rkme  Coukt  ok  thk  Uxitki)  States.     1905, 

[Reported  198  U.  S.  215.] 

The  facts  are  as  follows  :  The  plaintiff  in  error,  Harris,  was  a  resident 
of  Nortli  Carolina  at  the  time  of  the  commencement  of  this  action  in  189G, 
and  prior  to  that  tim(!  was  indel)ted  to  the  defendant  in  error.  Balk,  also 
a  resident  of  North  Carolina,  in  the  sum  of  $180,  for  money  borrowed 
from  lialk  by  Harris  during  the  year  189G,  which  Harris  verbally  prom- 

1  Ace.  Blaine  v.  Colonial  Marine  Assunnicc  f'n.,  1  .TiiIm,  .102  ;  Willii'lin  v.  Fiannis, 
6  P.iichniian,  216.  Ami  see  to  the  siinif  ellrrt  Iinini  i;il  ()ttoiii;m  i'.Mnk  i;.  Kiclianlsun 
(Mar.'-hl.'s,  18!);?),  21  Clin.-I.  112.       V.\>. 


428  HARRIS    V.    BALK.  [CHAP.  Ill, 

ised  to  repay,  but  there  was  no  written  evidence  of  the  obligation. 
Durino-  the  year  above  mentioned  one  Jacob  Epstein,   a  resident  of 
Baltimore,  in  the  State  of  Maryland,  asserted  that  Balk  was  indebted 
to  him  in  the  sum  of  over  $300.     In   August,   1896,   Hai-ris   visited 
Baltimore  for  the  purpose  of  purchasing  merchandise,   and  while  he 
was  in  that  city  temporarily  on  August  6,  1896,  Epstein  caused  to  be 
issued  out  of  a  proper  court  in  Baltimore  a  foreign  or  non-resident 
writ  of  attachment  against  Balk,   attaching  the   debt  due  Balk  from 
Harris,  which  writ  the  sheriff  at  Baltimore  laid  in  the  hands  of  Harris, 
with  a  summons  to  appear  in  the  court  at  a  day  named.    With  that  at- 
tachment, a  writ  of  summons  and  a  short  declaration  against  Balk  (as 
provided  by  the  Maryland  statute)  were  also  delivered  to  the  sheriff  and 
by  him  set  up  at  the  court  house  door,  as  required  by  the  law  of  Mary- 
land.    Before  the  return  day  of  the  attachment  writ  Harris  left  Baltimore 
and  returned  to  his  home  in  North  Carolina.     He  did  not  contest  tiie 
garnishee  process,  which  was  issued  to  garnish  the  debt  which  Harris 
owed  Balk.     After  his  return  Harris  made  an  affidavit  on  August  11, 
1896,  that  he  owed  Balk  $180,  and  stated  that  the  amount  had  been 
attached  by  Epstein  of  Baltimore,  and  by  his  counsel  in  the  Maryland 
proceeding  Harris  consented  therein  to  an  order  of  condemnation  against 
bim  as  such  garnishee  for  $180,  the  amount  of  his  debt  to  Balk.     Judg- 
ment was  thereafter  entered  against  the  garnishee  and  in  favor  of  tlie 
plaintiff.  Epstein,  for  $180.     After  the  entry  of  the  garnishee  judgment, 
condemning  the  S180  in  the  hands  of  the  garnishee,  Harris  paid   the 
amount  of  the  judgment  to  one  Warren,  an  attorney  of  Epstein,  residing 
in  North  Carolina.     On  August  11,  1896,  Balk  commenced  an  action 
against  Harris  before  a  justice  of  the  peace  in  North  Carolina,  to  recover 
the  $180  which  he  averred  Harris  owed  him.     The  plaintiff  in  error,  by 
way  of  answer  to  the  suit,  pleaded  in  bar  the  recovery  of  the  ]\raryland 
judgment  and  his  payment  thereof,  and  contended  that  it  was  conclusive 
against  the  defendant  in  error  in  this  action,  because  that  judgment 
was  a  valid  judgment  in  Maryland,  and  was  therefore  entitled  to  full 
faith  and  credit  in  the  courts  of  North  Carolina.     This  contention  was 
not  allowed  by  the  trial  court,  and  judgment  was  accordingly  entered 
against  Harris  for  the  amount  of  his  indebtedness  to  Balk,  and  that 
judgment  was  affirmed  by  the  Supreme  Court  of  North  Carolina.     The 
ground  of  such  judgment  was  that  the  Maryland  court  obtained  no  juris- 
diction to  attach  or  garnish  the  debt  due  from  Harris  to  Balk,  because 
Harris  was  but  temporarily  in  the  State,  and  the  situs  of  the  debt  was 
in  North  Carolina. 

Peckham,  J.  The  State  court  of  North  Carolina  has  refused  to  give 
any  effect  in  this  action  to  the  Maryland  judgment ;  and  the  Federal 
question  is,  whether  it  did  not  thereby  refuse  the  full  faith  and  credit 
to  such  judgment  which  is  required  by  the  Federal  Constitution.  If 
the  Maryland  court  had  jurisdiction  to  award  it,  the  judgment  is  valid 
and  entitled  to  the  same  full  faith  and  credit  in  North  Carolina  that  it 
has  in  Maryland  as  a  valid  domestic  judgment. 


SECT.    III.]  HARRIS   V.    BALK.  429 

The  defendant  in  error  contends  that  the  Maryland  court  obtained 
no  jurisdiction  to  award  the  judgment  of  condemnation  because  the 
garnishee,  although  at  the  time  in  the  State  of  Maryland,  and  personally 
served  with  process  therein,  was  a  non-resident  of  that  State,  onh-  cas- 
ually or  temporarily  within  its  boundaries  ;  that  the  situs  of  the  debt 
due  from  Harris,  the  garnishee,  to  the  defendant  in  error  herein  was  in 
North  Carolina,  and  did  not  accompany  Harris  to  Maryland;  that,  con- 
sequently, Harris,  though  within  the  State  of  Maryland,  had  not  pos- 
session of  any  property  of  Balk,  and  the  Maryland  State  court  therefore 
obtained  no  jurisdiction  over  any  property  of  Balk  in  the  attachment 
proceedings,  and  the  consent  of  Harris  to  the  entry  of  the  judgment 
was  immaterial.  The  plaintiff  in  error,  on  the  contrary,  insists  that, 
though  the  garnishee  were  but  temporarily  in  Maryland,  yet  the  laws 
of  that  State  provide  for  an  attachment  of  this  nature,  if  the  debtor,  the 
garnishee,  is  found  in  the  State  and  the  court  obtains  jurisdiction  over 
him  by  the  service  of  process  therein  ;  that  the  judgment,  condemning 
tiie  debt  from  Harris  to  Balk,  was  a  valid  judgment,  provided  Balk 
could  himself  have  sued  Harris  for  the  debt  in  Maryland.  This,  it  is 
asserted,  he  could  have  done,  and  the  judgment  was  therefore  entitled 
to  full  faith  and  credit  in  the  courts  of  North  Carolina. 

The  cases  holding  that  the  State  court  obtains  no  jurisdiction  over 
the  garnishee  if  he  be  but  temporarily  within  the  State,  proceed  upon 
the  theory  that  the  situs  of  the  debt  is  at  the  domicil  either  of  the 
creditor  or  of  the  debtor,  and  that  it  does  not  follow  the  debtor  in  his 
casual  or  temporary  journey  into  another  State,  and  the  garnishee  has  no 
possession  of  any  property  or  credit  of  the  principal  debtor  in  the  foreign 
State. 

We  regard  the  contention  of  the  plaintiff  in  error  as  the  correct  one. 
The  authorities  in  the  various  State  courts  upon  tliis  question  are  not  at 
all  in  harmony.  They  have  been  collected  by  counsel,  and  will  be  found 
in  their  respective  briefs,  and  it  is  not  necessary  to  here  enlarge  upon 
them. 

Attachment  is  the  creature  of  the  local  law ;  that  is,  unless  there  is 
a  law  of  the  State  providing  for  and  permitting  the  attachment  it  can- 
not be  levied  there.  If  tliere  be  a  law  of  the  State  providing  for  the 
attachment  of  the  debt,  tlien  if  the  garnishee  be  found  in  that  State, 
and  process  be  personally  served  upon  him  therein,  we  think  the  court 
thereby  acquires  jurisdiction  over  him,  and  can  garnish  the  debt  due  from 
him  to  the  debtor  of  the  plaintiff  and  condemn  it,  provided  the  o-arnishee 
could  himself  be  sued  l)y  iiis  creditor  in  that  State.  We  do  not  see  how 
the  question  of  jurisdiction  relnou  can  properly  be  made  to  depend  upon 
the  so-called  original  situs  of  the  debt,  or  upon  the  character  of  the  stay 
of  the  garnishee,  whether  temporary  or  permanent,  in  the  State  where 
the  attachment  is  issued.  Power  over  tlie  person  of  the  garnishee 
confers  jinisdiction  on  the  courts  of  the  State  where  the  writ  issues. 
Blackstone  r.  Miller,  1H8  U.  S.  IH!),  20G.  If,  while  temporarily  there, 
his  creditor  might  sue  him  there  antl  recover  the  debt,  then  he  is  liable 


430  HARRIS   V.    BALK.  [CILVP.  III. 

to  process  of  garnishment,  no  matter  where  tlie  situs  of  the  debt  was 
orighiallv.  We  do  not  see  the  materiality  of  the  expression  ''  situs  of 
the  del)t,"  wlien  used  in  connection  with  attachment  proceedings.  If 
by  situs  is  meant  the  place  of  the  creation  of  the  debt,  that  fact  is  im- 
material. If  it  be  meant  that  the  obligation  to  pay  the  debt  can  only 
be  enforced  at  the  situs  thus  tixed,  we  tliink  it  plamly  untrue.  The  ob- 
ligation of  the  debtor  to  pay  his  debt  clings  to  and  accompanies  him 
wherever  he  goes.  He  is  as  much  bound  to  pay  his  debt  in  a  foreign 
State  when  therein  sued  upon  his  obligation  by  his  creditor,  as  he  was 
in  the  State  where  the  debt  was  contracted.  We  speak  of  ordinary 
debts,  such  as  the  one  in  this  case.  It  would  be  no  defence  to  such 
suit  for  the  debtor  to  plead  that  he  was  only  in  the  foreign  State  casu- 
ally or  temporarily.  His  obligation  to  pay  would  be  the  same  whetlier 
he  was  there  in  that  way  or  with  an  intention  to  remain.  It  is  nothing 
but  the  obligation  to  pay  which  is  garnished  or  attached.  This  obliga- 
tion can  be  enforced  by  the  courts  of  the  foreign  State  after  personal  ser- 
vice of  process  therein,  just  as  well  as  by  the  courts  of  the  domicil  of 
tiie  delitor.  If  the  debtor  leave  the  foreign  State  without  appearing,  a 
judgment  by  default  may  be  entered,  upon  which  execution  may  issue, 
or  the  judgment  may  be  sued  upon  in  any  other  State  where  the  debtor 
might  be  found.  In  such  case  the  situs  is  unimportant.  It  is  not  a 
question  of  possession  in  the  foreign  State,  for  possession  cannot  be 
taken  of  a  debt  or  of  the  obligation  to  pay  it,  as  tangible  property 
might  be  taken  possession  of.  Notice  to  the  debtor  (garnishee)  of  the 
commencement  of  the  suit,  and  notice  not  to  pay  to  his  creditor,  is  all 
that  can  be  given,  whether  the  garnishee  be  a  mere  casual  and  tempo- 
rary comer,  or  a  resident  of  the  State  where  the  attachment  is  laid. 
His  obligation  to  pay  to  his  creditor  is  thereby  arrested  and  a  lien 
created  upon  the  debt  itself.  Gaboon  r.  Morgan,  38  Vt.  234,  236  ; 
National  Fire  Ins.  Co.  v.  Chambers,  53  N.  J.  Eq.  468,  483.  We  can 
see  no  reason  why  the  attachment  should  not  be  thus  laid,  provided 
the  creditor  of  the  garnishee  could  himself  sue  in  that  State  and  its 
laws  permitted  the  attachment. 

There  can  be  no  doubt  that  Balk,  as  a  citizen  of  the  State  of  North 
Carolina,  had  the  right  to  sue  Harris  in  Maryland  to  recover  the  debt 
whicli  Harris  owed  him.  Being  a  citizen  of  North  Carolina,  he  was 
entitled  to  all  the  privileges  and  immunities  of  citizens  of  the  several 
States,  one  of  which  is  the  right  to  institute  actions  in  the  courts  of  an- 
other State.  The  law  of  Maryland  provides  for  the  attachment  of  credits 
in  a  case  like  this.  See  sections  8  and  10  of  Article  9  of  the  Code  of 
Public  General  Laws  of  Maryland,  which  provide  that,  upon  the  proper 
facts  being  shown  (as  stated  in  the  article),  the  attachment  may  be  sued 
out  against  lands,  tenements,  goods,  and  credits  of  the  debtor.  Section 
10  pa°ticularly  provides  that  "  Any  kind  of  property  or  credits  belong- 
ing to  the  defendant,  in  the  plaintiff's  own  hands,  or  in  the  hands  of 
anv  one  else,  may  be  attached  ;  and  credits  may  be  attached  which 
shall  not  then  be  due."     Sections  11,  12,  and  13  of  the  above-mentioned 


SECT.  III.]  HARRIS   V.   BALK.  431 

article  provide  the  seneral  practice  for  levyin<T  the  attachraent  and 
the  proceedings  suh'seqnent  thereto.  Where  money  or  credits  are 
attached  the  inchoate  lien  attaches  to  the  fund  or  credits  wlien  the 
attachment  is  laid  in  the  hands  of  the  garnishee,  and  the  judgment 
condemning  the  amount  in  his  hands  becomes  a  personal  judgment 
acrainst  him.  lUischman  r.  Hanna,  72  Md.  1.  5,  G.  Section  34  of  the 
same  Maryland  (ode  provides  also  that  this  judgment  of  condemnatioa 
against  the  garnishee,  or  payment  by  him  of  such  judgment,  is  pleadal)le 
in  bar  to  an  action  brought  against  him  by  the  defendant  in  the  attach- 
ment suit  for  or  concerning  the  property  or  credits  so  condemned. 

It  thus  appears  that  Balk  could  have  sued  Harris  in  ^Marylancl  to  re- 
cover his  debt,  notwithstanding  tlie  temi)<)rary  character  of  Harris'  stay 
there;  it  also  appears  that  the  municipal  law  of  Maryland  permits  the 
debtor  of  the  principal  debtor  to  be  garnished,  and  therefore  if  the  court 
of  the  State  where  the  garnishee  is  found  obtains  jurisdiction  over  him, 
through   the   service  of  process  upon   him  within    the  State,  then  the 
judgnTent  entered  was  a  valid  judgment.      See  Minor  on    Conllict  of 
Laws,  section  I'io,  where  the  various  theories  regarding  the  subject  are 
stated  and  many  of  the  authorities  cited.     He  there  cites  many  cases  to 
prove  the  correJtness  of  the  theory  of  the  validity  of  the  judgment  where 
the  municipal  law  permits  the  debtor  to  be  garnished,  although  his  being 
^N-ithin  the  State  is  but  temporary.      See  pp.  289,  290.     This  is  the  doc- 
trine which  is  also  adopted  in  Morgan  r.  Neville,  74  Pa.  St.  52,  by  the 
Supreme  Court  of  Pennsylvania,  per  Agnew.  J.,  in  delivering  tlie  opin- 
ion of  that  court.     The  same  principle  is  held  in  Wyeth  Hardware  &c. 
Co.  V.  Lano",  127  Mo.  242,  247;  in  Lancashire  Insurance  Co.  r.  Corbetts, 
165  111.  592';   and  in  Harvey  r.  Great  Northern  Ry.  Co.,  50  Minn.  405, 
406,  407;  and  to  the  same  effect  is  Embree  /•.  Hanna,  5  Johns.  (N.  Y.) 
101';  also  Savin  r.  Bond,  57  Md.  228.  wln-re  the  court  held  th.at  the  at- 
tachment was  prop(>rlv  served  upon  a  party  in  llie  District  of  Columbia 
uhile  he  was  temporarily  there;    that  as  his  debt  to  the  a|)pellant  was 
payable   wherever  he   was   found,   and  process  had    been  served  upon 
him  in  the  District  of  Columbia,  the  Supreme  Court  of  the  District  had 
unquestioned  jurisdietion  to  render  judgment,  and  the  same  having  been 
l)aid   theie  was  no  error  in  granting  the  prayer  of  the  appellee  that  such 
jmlglnent  was  conclusive.     The  case  in  138  N.  Y.  209,  Douglass  r.  In- 
surance Co.,  is  not  contrary  to  this  doctrine.     The  question  theie  was 
not  as  to  the  temporary  character  of  the  presence  of  the  garnishee  in 
the  State  of  Massachusetts,  but,  as  the  garnishee  was  a  foreign  corpora- 
tion, it  was  held  that  it  was  not  within  the  State  of  Massachuscitts  so  as 
to  l)e  liable  to  attachment  by  the  service  upon  an  agent  of  the  company 
within  that  State.   The  general  principle  laid  down  in  Embree  r.  Hanna, 
5  Johns.  (N.  Y.)  101 ,  was  recognized  as  correct.     There  are,  as  we  have 
said,  authorities  to  the  contrary,  and  they  cannot  be  reconciled. 

It  seems  to  us,  however,  that  the  principle  decided  in  Chicago,  R.  I. 
&c.  Ry.  Co.  r.  Sttnin,  174  U.  S.  710,  recognizes  the  jurisdiction,  although 
in  that  ease  it  appears  that  the  presence  of  the  garnishee  was  not  merely 


432  HAKKIS   V.   BALK.  [CHAP.  III. 

a  temporary  one  in  the  State  where  the  process  was  served.  In  that  case 
it  was  said  :  "  '  All  debts  are  payable  everywhere,  unless  there  be  some 
special  limitation  or  provision  in  respect  to  the  payment ;  the  rule  being 
that  debts  as  such  have  no  locus  or  situs,  but  accompany  the  creditor 
everywhere,  and  authorize  a  demand  upon  the  debtor  ever3where.' 
2  Parsons  on  Contracts,  8th  ed.,  702  (9th  ed.,  739).  The  debt  involved 
in  the  pending  case  had  no  '  special  limitation  or  provision  in  respect  to 
payment.'  It  was  payable  generally,  and  could  have  been  sued  on  in 
Iowa,  and  therefore  was  attachable  in  Iowa.  This  is  the  principle  and 
effect  of  the  best  considered  cases,  —  the  inevitable  effect  from  the  na- 
ture of  transitory  actions  and  the  purpose  of  foreign  attachment  laws 
if  we  would  enforce  that  purpose."  The  case  recognizes  the  right  of 
the  creditor  to  sue  in  the  State  where  the  debtor  may  be  found,  even  if 
but  temporarily  there,  and  upon  that  right  is  built  the  further  right  of 
the  creditor  to  attach  the  debt  owing  by  the  garnishee  to  his  creditor. 
The  importance  of  the  fact  of  the  right  of  the  original  creditor  to  sue 
his  debtor  in  the  foreign  State,  as  affecting  the  right  of  the  creditor  of 
that  creditor  to  sue  the  debtor  or  garnishee,  lies  in  the  nature  of  the 
attachment  proceeding.  The  plaintiff,  in  such  proceeding  in  the  foreign 
State,  is  able  to  sue  out  the  attachment  and  attach  the  debt  due  from 
the  o-arnishee  to  his  (the  garnishee's)  creditor,  because  of  the  fact  that 
the  plaintiff  is  really  in  such  proceeding  a  representative  of  the  creditor 
of  the  garnishee,  and  therefore  if  such  creditor  himself  had  the  right  to 
commence  suit  to  recover  the  debt  in  the  foreign  State  his  representative 
has  the  same  right,  as  representing  him,  and  may  garnish  or  attach  the 
debt,  provided  the  municipal  law  of  the  State  where  the  attachment 
was  sued  out  permits  it. 

It  seems  to  us,  therefore,  that  the  judgment  against  Harris  in  Mary- 
land, condemning  the  $180  which  he  owed  to  Balk,  was  a  valid  judg- 
ment, because  the  court  had  jurisdiction  over  the  garnishee  by  personal 
service  of  process  within  the  State  of  Maryland. 

It  ought  to  be  and  it  is  the  object  of  courts  to  prevent  the  payment 
of  any  debt  twice  over.  Thus  if  Harris,  owing  a  debt  to  Balk,  paid  it 
under  a  valid  judgment  against  him,  to  Epstein,  he  certainly  ought  not 
to  be  compelled  to  pay  it  a  second  time,  but  should  have  the  right  to 
plead  his  payment  under  the  Maryland  judgment.  It  is  objected,  how- 
ever, that  the  payment  by  Harris  to  Epstein  was  not  under  legal  com- 
pulsion. Harris  in  truth  owed  the  debt  to  Balk,  which  was  attached 
by  Epstein.  He  had,  therefore,  as  we  have  seen,  no  defence  to  set  up 
against  the  attachment  of  the  debt.  Jurisdiction  over  him  personally 
had  been  obtained  by  the  Maryland  court.  As  he  was  absolutely  with- 
out defence,  there  was  no  reason  why  he  should  not  consent  to  a  judg- 
ment impounding  the  debt,  which  judgment  the  plaintiff  was  legally 
entitled  to,  and  which  he  could  not  prevent.  There  was  no  merely 
voluntary  payment  within  the  meaning  of  that  phrase  as  a[)plicable  here. 

But  most  rights  may  be  lost  by  negligence,  and  if  the  garnishee  were 
guilty  of  negligence  in  the  attachment  proceeding,  to  the  damage  of 


SECT.  III.]  HARRIS   V.    BALK.  433 

Balk,  he  ought  not  to  be  permitted  to  set  up  the  judgment  as  a  defence. 
Thus  it  is  recognized  as  the  duty  of  the  garnishee  to  give  notice  to  liis 
own  creditor,  if  he  would  protect  himself,  so  that  the  creditor  may  have 
the  opportunity  to  defend  himself  against  the  claim  of  the  person  suin*'" 
out  the  attachment.  This  duty  is  affirmed  in  the  case  above  cited  of 
]\rorgan  v.  Neville,  74  Pa.  St.  52.  and  is  sjjoken  of  in  Railroad  Co.  r. 
Sturm,  supra,  although  it  is  not  therein  actually  decided  to  be  neces- 
sar}',  because  in  that  case  notice  was  given  and  defence  made.  While 
the  want  of  notiflcation  by  the  garnishee  to  his  own  creditor  may  have 
no  effect  upon  the  validity  of  the  judgment  against  the  garnishee  (the 
proper  publication  being  made  by  tlie  ])laintiff),  we  think  it  has  and 
ought  to  have  an  effect  upon  the  right  of  the  garnishee  to  avail  himself 
of  the  prior  judgment  and  his  payment  thereunder.  This  notification 
b}'  the  garnishee  is  for  the  purpose  of  making  sure  that  his  creditor 
shall  have  an  opportunity  to  defend  the  claim  made  against  liim  in  the 
attachment  suit.  Fair  dealing  requires  this  at  the  hands  of  the  gar- 
nishee. In  this  case,  while  neither  the  defendant  nor  the  garnishee 
appeared,  the  court,  while  condemning  the  credits  attached,  could  not, 
by  the  terms  of  the  Marjland  statute,  issue  the  writ  of  execution  unless 
the  plaintiff  gave  bond  or  sufficient  security  before  the  court  awardiii"- 
the  execution,  to  make  restitution  of  the  money  paid  if  the  defendant 
should,  at  any  time  within  a  year  and  a  day,  appear  in  the  action  and 
show  that  the  plaintiff's  claim,  or  some  part  thereof,  was  not  due  to  the 
plaintiff.  The  defendant  in  error.  Balk,  had  notice  of  this  attachment, 
certainly  within  a  few  days  after  the  issuing  thereof  and  the  entry  of 
judgment  thereon,  because  he  sued  the  plaintiff  in  error  to  recover  his 
debt  within  a  few  days  after  his  (Harris')  return  to  North  Carolina,  in 
which  suit  the  judgment  in  Maryland  was  set  up  by  Harris  as  a  plea  in 
bar  to  Balk's  claim.  Balk,  therefore,  had  an  opportunity  for  a  year  and 
a  day  after  the  entry  of  the  judgment  to  litigate  the  question  of  his  lia- 
bility in  the  Maryland  court  and  to  show  tliat  he  did  not  owe  the  debt, 
or  some  part  of  it,  as  was  claimed  by  Epstein.  He,  however,  took  no 
proceedings  to  that  end,  so  far  as  the  record  shows,  and  the  reason  may 
be  supposed  to  be  that  he  could  not  successfully  defend  the  claim,  be- 
cause he  admitted  in  this  case  that  he  did,  at  the  time  of  the  attachment 
proceeding,  owe  Epstein  some  6344. 

Generally,  though,  tlie  failure  on  the  part  of  the  garnishee  to  give 
proper  notice  to  his  creditor  of  the  levying  of  the  attachment  would  be 
such  a  neglect  of  duty  on  the  part  of  the  garnishee  which  he  owed  to 
his  creditor  as  would  prevent  his  availing  iiimself  of  the  judgment  in 
the  attachment  suit  as  a  bar  to  the  suit  of  his  creditor  against  Iiimself, 
which  might  therefore  result  in  his  being  called  upon  to  pay  the  debt 
twice. 

The  judgment  of  the  Supreme  Court  of  North  Carolina  must  be  re- 
versed and  the  cause  remanded  for  further  proceedings  not  inconsistent 
with  the  opinion  of  this  court.  Reversed. 

Mr.  Justice  Harlan  and  Mr.  Justice  Day  dissented. 

28 


434  LE  MESURIER  V.   LE  MESURIER.        [CHAP.  III. 

TODESCO  V.    DUMONT. 

Civil  Tribunal  of  the  Seine.     1890. 

[Reported  18  Clunet,  559.] 

The  Court.  Todesco,  an  Austrian  subject  domiciled  at  Vienna, 
alleges  that  Dumout,  a  German  without  known  domicile  at  Paris, 
residing  in  London,  should  be  ordered  to  pay  him  44,700.95  francs, 
the  amount  of  a  note  made  by  Dumout  to  Todesco,  dated  Augsburg, 
March  9,  1876,  registered  at  Paris,  Aug.  IG,  1889.  Todesco  further 
prays  the  court  to  validate  the  garnishment  made  by  him  upon  this 
note,  on  Betzold,  a  banker  of  Paris,  Aug.  16,  1889.  Incidentally 
Todesco  moves  that  the  question  of  validation  be  continued  until 
a  competent  court  has  passed  on  the  validity  of  the  principal  obliga- 
tion. Dumout  pleads  to  the  jurisdiction  of  this  court,  on  the  ground 
that  the  parties  are  foreigners,  and  the  obligation  was  contracted  in 
another  country. 

Though  the  court  is  incompetent  in  such  a  case  to  determine,  as 
between  strangers,  the  existence  of  the  obligation,  it  is  on  the  con- 
trary competent  to  pass  upon  the  legality  of  an  attachment  or  of  a 
levy  of  execution  resulting  from  a  garnishment  made  within  its  juris- 
diction. It  ought  always  to  grant  a  continuance  to  the  attaching 
creditor  to  enable  him  to  prove  his  claim  before  a  competent  court, 
on  penalty,  in  case  of  failure  to  do  so,  of  nullity  of  the  whole 
process. 

On  these  grounds  the  court  has  jurisdiction  only  of  the  question  of 
the  validity  of  the  garnishment.  A  continuance  is  granted  for  six 
months  from  this  date,  within  which  time,  on  penalty  of  nullity, 
Todesco  shall  sue  said  Dumont,  on  the  principal  obligation,  before 
a  court  of  competent  jurisdiction. 


SECTION   IV. 

JURISDICTION    FOR    DIVORCE. 


LE  MESURIER  v.    LE  MESURIER. 
Judicial  Committee  of  the  Privy  Council.     1895. 

[Reported  [1895]  Appeal  Cases,  517.] 

Appeal  from  the  Supreme  Court  of  Ceylon,  which  dismissed  appel- 
lant's libel  for  divorce  on  the  ground  of  lack  of  jurisdiction.  At 
the  time  of  the  marriage  (which  was  solemnized  in  England)  appel- 


SECT,    IV.]  LE    MESUraER    V.    LE    MESURIEK,  435 

laut,  the  husband,  was  and  has  siuce  remaiued  a  resident  of  Ceylon, 
but  was  then  and  has  since  remained  domiciled  in  England.  The 
respondent  was  a  Frenchwoman.^ 

The  judgment  of  their  Lordships  was  delivered  by  Lord  Watson. 

When  carefully  examined,  neither  the  English  nor  the  Scottish 
decisions  are,  in  their  Lordships'  opinion,  sufficient  to  establish  the 
proposition  that,  in  either  of  these  countries,  there  exists  a  recog- 
nized rule  of  general  law  to  the  effect  that  a  so-called  matrimonial 
domicile  gives  jurisdiction  to  dissolve  marriage. 

Tollemache  r.  Tollemuche,  1  Sw.  &  Tr.  557,  which  was  decided  by 
three  judges  in  1859,  shortly  after  the  passing  of  the  Divorce  Act, 
appears  to  be  an  authority  to  the  contrary.  The  learned  judges 
sustained  the  jurisdiction  of  the  English  court,  which  was  the  forum 
of  the  husband's  domicile,  and  disregarded  as  incompetent  a  decree 
of  the  Court  of  Session  dissolving  his  marriage,  although  he  had  a 
matrimonial  domicile  in  Scotland,  where  he  had  ho7ia  Jide  resided  for 
four  years  with  his  wife,  neither  casually  nor  as  a  traveller.  Then 
in  Brodie  v.  Brodie,  2  Sw.  &  Tr.  259,  in  the  year  1861,  three  learned 
judges  decided  the  opposite,  holding  that  residence  of  that  kind, 
which  had  been  found  in  Tollemache  v.  Tollemache,  to  be  insufficient 
to  give  jurisdiction  to  a  Scottish  court  where  the  domicile  was  Eng- 
lish, was  nevertheless  sufficient  to  give  jurisdiction  to  themselves 
where  the  domicile  was  Australian.  In  Wilson  v.  Wilson,  L.  R.  2 
P.  &  D.  435,  jurisdiction  was  sustained  by  Lord  Penzance  upon  the 
ground  that  the  petitioner  had  acquired  an  English  domicile,  with  an 
expression  of  opinion  by  his  Lordship  that  such  domicile  ought  to  be 
the  sole  ground  of  jurisdiction  to  dissolve  marriage.  In  Niboyet  v. 
Niboyet,  4  P.  D.  1,  Sir  Robert  Phillimore  expressed  a  similar  opin- 
ion, and  dismissed  the  suit  of  the  petitioner,  who  had  a  matrimonial 
domicile  in  England  which  fully  answered  the  definition  of  such 
domicile  given  either  in  Brodie  v.  Brodie  or  in  Pitt  v.  Pitt,  1  Court 
Sess.  Cas.  3d  Series,  106,  4  Macq.  App.  Cas.  627.  His  decision 
was,  no  doubt,  reversed  in  the  Court  of  Ajjpeal;  but  it  had  the  sup- 
port of  the  present  Master  of  the  Rolls,  and  their  Lordships  have 
already  pointed  out  that  the  judgment  of  the  majority  was  mainly,  if 
not  altogether,  based  upon  a  reason  which  will  not  bear  scrutiny. 

The  Scottish  decisions  appear  to  their  Lordships  to  be  equall}' 
inefficient  to  show  that  a  matrimonial  domicile  is  a  recognized 
ground  of  divorce  jurisdiction.  So  far  as  tliey  go,  they  are  con- 
sistent enough  but  the  doctrine  appears  to  have  had  a  very  brief 
existence,  because  the  three  cases  in  which  it  was  applied  all  occurred 
between  the  7tli  of  February  and  the  14th  of  December  in  the  year 
1862.  Although,  owing  to  the  course  taken  l)y  tlio  appellant's  coun- 
sel in  Pitt  V,'.  Pitt,  1  Court  Sess.  Cas.  3d  Series,  1()(!,  4  IMacq.  App. 
Cas.   627,  the  House  of  Lords  had  not  an  opportunity  of  expressly 

^  This  sliort  statement  of  fafts  is  substituted  for  that  of  the  reporter.  Arguments 
of  counsel  and  part  of  tlie  opinion  are  omitted.  —  Ed. 


436  LE   MESURIEE   V.   LE   MESUKIEK.  [CHAP.    IIL 

deciding  the  point,  there  can  be  little  doubt  that  the  approval  of  the 
course  adopted  b}'  counsel,  which  was  openly  expressed  by  Lord 
Westbury,  has  had  the  effect  of  discrediting  the  doctrine  in  Scot- 
land; and  it  is  impossible  to  affirm  that  the  Court  of  Session  would 
now  give  effect  to  it.  The  eminent  judge  who,  in  1862,  was  the  first 
to  trive  a  full  and  clear  exposition  of  the  doctrine  of  matrimonial 
domicile,  spoke  of  it,  in  the  year  1882,  not  as  a  doctrine  accepted  in 
the  law  of  Scotland,  but  as  matter  of  speculation. 

It  is  a  circumstance  not  undeserving  of  notice  that  the  learned 
judges,  whether  English  or  Scottish,  who  have  expressed  judicial 
opinions  in  favor  of  a  matrimonial  domicile,  have  abstained  from 
reference  to  those  treatises  on  international  law  which  are  generally 
regarded  as  authoritative,  in  the  absence  of  any  municipal  law  to  the 
contrary.  The  reason  for  their  abstinence  is  probably  to  be  found 
in  the  circumstance  that  nothing  could  be  extracted  from  these 
sources  favorable  to  the  view  which  they  took.  Their  Lordships  are 
of  opinion  that  in  deciding  the  present  case,  on  appeal  from  a  colony 
which  is  governed  by  the  principles  of  the  Roman-Dutch  law,  these 
authorities  ought  not  to  be  overlooked. 

Huber  (Lib.  1,  tit.  3,  s.  2,  De"  Confl.  Leg.)  states  the  rule  of  inter- 
national law  in  these  terms:  "Rectores  imperiorum  id  comiter  agunt, 
ut  jura  cujusque  populi  intra  terminos  ejus  exercita  teneant  ubique 
suam  vim,  quatenus  nihil  potestati  aut  juri  alterius  imperantis 
ejusque  civium  prsejudicetur."  That  passage  was  cited  with  appro- 
bation by  Lord  Cranworth  and  Lord  Westbury  in  Shaw  v.  Gould,* 
L.  R.  3  H.  L.  72,  81.  To  the  same  effect,  but  in  language  more 
pointed,  is  the  text  of  Rodenburg  (De  Stat.  Divers,  tit.  1,  c.  3,  s.  4), 
cited  in  the  same  case  by  Lord  Westbury:  "  Unicum  hoc  ipsa  rei 
natura  ac  necessitas  invexit,  ut  cum  de  statu  et  conditione  hominum 
qujeritur,  uni  solummodo  Judici,  et  quidem  Domicilii,  universum  in 
ilia  jus  sit  attributum."  The  same  rule  is  laid  down  by  Bar,  the 
latest  Continental  writer  on  the  theory  and  practice  of  international 
private  law.  He  says  (sect.  173,  Gillespie's  Translation,  p.  382), 
"  that  in  actions  of  divorce  —  unless  there  is  some  express  enactment 
to  the  contrary  —  the  judge  of  the  domicile  or  nationality  is  the 
only  competent  judge."  And  he  adds:  "A  decree  of  divorce,  there- 
fore, pronounced  by  any  other  judge  than  a  judge  of  the  domicile  or 
nationality,  is  to  be  regarded  in  all  other  countries  as  inoperative." 

There  can,  in  their  Lordships'  opinion,  be  no  satisfactory  canon 
of  international  law,  regulating  jurisdiction  in  divorce  cases,  which 
is  not  capable  of  being  enunciated  with  sufficient  precision  to  ensure 
practical  uniformity  in  its  application.  But  any  judicial  definition 
of  matrimonial  domicile  which  has  hitherto  been  attempted  has  been 
singularly  wanting  in  precisior:,  and  not  in  the  least  calculated  to 
produce  a  uniform  result.  The  definitions  given  in  Brodie  v.  Brodie, 
2  Sw.  &  Tr.  259,  and  in  Pitt  v.  Pitt,  1  Court  Sess.  Cas.  3d  Series, 
106,  4  Macq.  App.  Cas.  627,  appear  to  their  Lordships  to  be  equally 


SECT.    lY.]  LE  MESURIER    V.   LE   MESURIER.  437 

open  to  that  objection.  Bona  fide  residence  is  an  intelligible  expres- 
sion, if,  as  their  Lordships  conceive,  it  means  residence  which  has 
not  been  resorted  to  for  the  mere  purpose  of  getting  a  divorce  which 
was  not  obtainable  in  the  country  of  domicile.  Residence  which  is 
*'not  that  of  a  traveller"  is  not  verj'  definite;  but  nothing  can  be 
more  vague  than  the  description  of  residence  which,  not  being  that 
of  a  traveller,  is  not  to  be  regarded  as  "casual."  So,  also,  the  place 
where  it  is  the  duty  of  the  wife  to  rejoin  her  husband,  if  they  happen 
to  be  living  in  different  countries,  is  very  indefinite.  It  may  be 
her  conjugal  duty  to  return  to  his  society  although  he  is  living  as  a 
traveller,  or  casually,  in  a  country  where  he  has  no  domicile.  Neither 
the  English  nor  the  Scottish  definitions,  which  are  to  be  found  in  the 
decisions  already  referred  to,  give  the  least  indication  of  the  degree 
of  permanence,  if  any,  which  is  required  in  order  to  constitute  matri- 
monial domicile,  or  afford  any  test  by  which  that  degree  of  perma- 
nence is  to  be  ascertained.  The  introduction  of  so  loose  a  rule  into 
the  jus  gentium  would,  in  all  probability,  lead  to  an  inconvenient 
variety  of  practice,  and  would  occasion  the  very  conflict  which  it  is 
the  object  of  international  jurisprudence  to  prevent. 

Their  Lordships  attach  great  weight  to  the  consideration  that  the 
theory  of  matrimonial  domicile  for  which  the  appellant  contends  has 
never  been  accepted  in  the  court  of  last  resort  for  England  and  Scot- 
land. The  matter  does  not  rest  there;  because  the  theory  is  not 
only  in  direct  opposition  to  the  clear  opinion  expressed  by  Lord 
Westbury  in  Pitt  r.  Pitt,  1  Court  Sess.  Cas.  3d  Series,  106,  4  Macq. 
App.  Cas.  627,  but  appears  to  their  Lordships  to  be  at  variance  witli 
the  principles  recognized  by  noble  and  learned  Lords  in  Dolphin  v. 
Robins,  7  H.  L.  C.  390,  and  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  r>5. 
It  is  true  that  in  these  cases,  and  especially  in  Dolphin  v.  Robins, 
there  was  ground  for  holding  that  the  spouses  had  resorted  to  a  for- 
eign country  and  a  foreign  tribunal  in  order  to  escape  from  the  law 
and  the  courts  of  their  English  domicile.  But  in  both  the  inter- 
national principle  upon  which  jurisdiction  to  dissolve  a  marriage 
depends,  was  considered  and  discussed;  and  the  arguments  addressed 
to  their  Lordships  in  favor  of  matrimonial  domicile  by  the  learned 
counsel  for  the  appellant  appear  to  them  to  be  at  variance  with  the 
weighty  observations  which  were  made  by  noble  and  learned  Lords 
in  these  cases.  In  Dolphin  y.  Robins,  Lord  Cranworth  stated  that 
"it  must  be  taken  now  as  clearly  established  that  the  Scotch  court 
has  no  power  to  dissolve  an  English  marriage,  where,  as  in  this  case, 
the  parties  are  not  really  domiciled  in  Scotland,  but  have  only  gone 
there  for  such  a  time  as,  according  to  the  doctrine  of  the  Scotch 
courts,  gives  them  jurisdiction  in  the  matter."  In  Shaw  v.  Gould 
the  dicta  of  noble  and  Icarni'd  lords  upon  the  point  raised  in  this 
appeal  were  even  more  emphatic.  Lords  Cranworth  and  Westbury 
expressed  their  entire  approval  of  liio  doctrine  laid  down  by  Iluln'r 
and  Rodenburg    in   those    passages  wliicli  have    already   been   cited. 


■438  LE   MESURIER   V.    LE    MESURIER.  [CHAP.    III. 

Their  Lordships  did  not  go  the  length  of  saying  that  the  courts  of 
no  other  country  could  divorce  spouses  who  were  domiciled  in  Eng- 
land; but  they  held  that  the  courts  of  England  were  not  bound,  by 
any  principle  of  international  law,  to  recognize  as  effectual  the 
decree  of  a  foreign  court  divorcing  spouses  who,  at  its  date,  had 
their  domicile  in  England.  The  other  noble  and  learned  lords  who 
took  part  in  the  decision  of  Shaw  v.  Gould,  L.  R.  3  H.  L.  55,  were 
Lords  Chelmsford  and  Colonsa}'.  Lord  Chelmsford  did  not  express 
any  opinion  upon  the  subject  of  matrimonial  domicile.  Lord  Colon- 
say  rested  his  judgment  upon  the  fact  that  the  spouses  had  resorted 
to  Scotland  for  the  very  purpose  of  committing  a  fraud  upon  the  law 
of  their  English  domicile;  but  he  did  indicate  an  opinion  that,  in 
the  absence  of  such  fraudulent  purpose,  they  might  possibly  have 
obtained  a  divorce  in  Scotland,  after  a  residence  in  that  country 
which  was  insufficient  to  change  their  domicile  of  succession. 

Their  Lordships  have  in  these  circumstances,  and  upon  these  con- 
siderations, come  to  the  conclusion  that,  according  to  international 
law,  the  domicile  for  the  time  being  of  the  married  pair  affords  the 
only  true  test  of  jurisdiction  to  dissolve  their  marriage.  They  con- 
cur, without  reservation,  in  the  views  expressed  by  Lord  Penzance 
in  Wilson  r.  Wilson,  L.  R.  2  P.  &  D.  442,  which  were  obviously 
meant  to  refer,  not  to  questions  arising  in  regard  to  the  mutual 
rights  of  married  persons,  but  to  jurisdiction  in  the  matter  of 
divorce:  "It  is  the  strong  inclination  of  my  own  opinion  that  the 
only  fair  and  satisfactory  rule  to  adopt  on  this  matter  of  jurisdiction 
is  to  insist  upon  the  parties  in  all  cases  referring  their  matrimonial 
differences  to  the  courts  of  the  country  in  which  they  are  domiciled. 
Dift'ei'ent  communities  have  different  views  and  laws  respecting 
matrimonial  obligations,  and  a  different  estimate  of  the  causes  which 
should  justify  divorce.  It  is  both  just  and  reasonable,  therefore, 
that  the  differences  of  married  people  should  be  adjusted  in  accord- 
ance with  the  laws  of  the  community  to  which  they  belong,  and  dealt 
with  by  the  tribunals  which  alone  can  administer  those  laws.  An 
honest  adherence  to  this  principle,  moreover,  will  preclude  the 
scandal  which  arises  when  a  man  and  woman  are  held  to  be  man  and 
wife  in  one  country  and  strangers  in  another." 

Their  Lordships  will,  therefore,  humbly  advise  Her  Majesty  to 
affirm  the  order  appealed  from.  The  appellant  must  pay  to  the  first 
and  fourth  respondents  their  costs  of  this  appeal.-^ 

1  The  doctrine  that  jurisdiction  for  divorce  depends  solely  upon  the  domicile  of  the 
husband  is  now  fully  established  in  England.  Shaw  u.  Att. -Gen.,  L.  R.  2  P.  &  D. 
156  ;  Green  v.  Green,  [1893]  P.  89.  Ace.  Humphrey  v.  Humphrey,  33  Scot.  L.  R. 
99.  —  Ed. 


SECT.  IV.]  ARMYTAGE  V.    ARMYTAGE.  439 

ARMYTAGE  v.   ARMYTAGE. 
High  Court  of  Justice,  Probate  Division.    1898. 

[Reported  [1898]  Probate,  178.] 

GoRELL  Barxes,  J.^  This  is  a  suit  for  judicial  separation  bj'  Mrs. 
Armytage  against  her  husband  on  the  ground  of  his  alleged  cruelty 
towards  her.  By  his  answer  the  respondent  has  denied  the  alleged 
cruelty,  and  by  an  act  on  petition  he  has  further  pleaded  that  the 
court  has  no  jurisdiction  to  entertain  the  suit.  I  have,  therefore,  to 
determine  a  question  of  fact,  whether  there  has  been  cruelty  by  the 
respondent  to  the  petitioner,  and  a  question  of  law,  whether  the  court 
has  jurisdiction  in  the  circumstances  to  entertain  the  suit.  The  second 
question  raises  a  point  of  considerable  importance  in  private  inter- 
national law. 

The  parties  were  married  at  Toorak,  near  Melbourne,  Australia,  on 
April  11,  1888,  and  there  are  two  children  of  the  marriage,  whose 
custody  the  petitioner  seeks  to  obtain.  The  respondent  is  by  birth  an 
Australian,  and  his  domicile  is  in  the  colony  of  Victoria.  He  was  edu- 
cated at  Cambridge,  and  has  been  called  to  the  English  Bar.  The 
petitioner  is  an  Englisliwoman,  born  in  England,  of  parents  residing 
at  Blackheath,  near  London.  The  respondent  and  the  petitioner  be- 
came acquainted  on  board  ship  on  the  passage  from  this  country  to 
Melbourne,  and  their  marriage  was  celebrated  shortly  afterwards. 
They  cohabited  in  Australia  and  in  England,  and  afterwards  in  Italy, 
and  the  occurrences  which  give  rise  to  this  suit  took  place  at  Florence 
in  April  and  May,  1897.  .  .   . 

The  further  facts  necessaiT  to  refer  to  are  these :  The  petitioner 
came  to  this  country  with  lier  children  on  or  about  May  25,  1897,  and 
she  and  the  cliildren  liave  since  resided  under  her  parents'  roof  and  at 
Bexiiill.  The  respondent's  solicitor  on  May  31,  1897,  wrote  on  behalf 
of  the  respondent  to  the  petitioner  and  her  fatlier  requesting  the  peti- 
tioner to  return  with  the  children  to  her  husband,  but  she  declined  to 
comply  with  this  request.  At  the  end  of  June,  1897,  the  respondent 
came  to,  and  has  since  resided  in,  England,  but  I  understand  he  has 
not  taken  up  a  permanent  residence  here,  and  has  only  come  to  and  is 
remaining  in  England  for  the  purpose  of  enforcing,  and  so  long  as  may 
be  necessary  to  determine,  such  rights  as  he  may  have  against  the 
petitioner  with  regard  to  the  children.  In  the  month  of  November, 
1897,  he  settled  the  sum  of  £100  on  each  of  his  children,  and  made 
tliem  wards  of  Court  in  (.'hancory.  Ho  tiicreupon  a|)plied  to  North,  J., 
for  an  order  for  the  custody  of  the  cliildren,  wiiich  was  met  by  a  cross- 
application  on  the  part  of  the  petitioner.  In  the  meantime  these  pro- 
ceedings were  commenced,  and  the  respondent  was  served  with  the 
citation  and  petition  in  this  country.    North,  .J.,  ordered  the  application 

^  Part  of  llie  o)iiiiiijii  is  oinillcd.  —  Eu. 


440  ARMYTAGE   V.   AKMYTAGE.  [CHAP.    III. 

before  him  to  stand  over  until  after  the  determination  of  this  suit.  The 
question  to  be  decided,  therefore,  is  whether  or  not  this  court  can 
entertain  a  suit  for  judicial  separation  b}'  the  petitioner  against  the 
respondent  in  the  circumstances  above  stated.  .  .  . 

The  court  does  not  now  pronounce  a  decree  of  dissolution  where  the 
parties  are  not  domiciled  in  this  countr}',  except  in  favor  of  a  wife  de- 
serted by  her  husband,  or  whose  husband  has  so  conducted  himself 
towards  her  that  she  is  justified  in  living  apart  from  him,  and  who,  up 
to  the  time  when  she  was  deserted  or  began  so  to  be,  was  domiciled 
with  her  husband  in  this  country,  in  which  case,  without  necessarily 
resorting  to  the  American  doctrine  that  in  such  circumstances  a  wife 
may  acquire  a  domicile  of  her  own  in  the  country  of  the  matrimonial 
home,  it  is  considered  that,  in  order  to  meet  the  injustice  which  might 
be  done  by  compelling  a  wife  to  follow  her  husband  from  country  to 
country,  he  cannot  be  allowed  to  assert  for  the  purposes  of  the  suit  that 
he  has  ceased  to  be  domiciled  in  this  country.  The  jurisdiction  to 
dissolve  marriages  was  conferred  upon  this  court  by  the  Matrimonial 
Causes  Act,  1857,  and  although  that  act  does  not  expressly  make 
domicile  a  test  of  jurisdiction,  that  test  is  applied  by  the  court  to  the 
exercise  of  jurisdiction  in  cases  of  dissolution  of  marriage.  It  is  de- 
rived from  the  principles  of  private  international  ,law,  an  adherence  to 
which  is  necessary,  as  Lord  Penzance  said  in  Wilson  v.  Wilson,  L.  R. 
2  P.  &  M.  435,  at  p.  442,  in  order  to  "preclude  the  scandal  which 
arises  when  a  man  and  woman  are  held  to  be  man  and  wife  in  one 
country  and  strangers  in  another."  These  principles  are  expounded 
by  manv  jurists  in  this  and  other  countries.  They  are  based  on  the 
principle  that  a  person's  status  ought  to  depend  on  the  law  of  his  domi- 
cile, though  there  may  be  limitations  and  exceptions  to  this  principle  : 
see  Dicey's  Conflict  of  Laws,  1896,  cap.  18,  p.  474,  et  seq.  (conf. 
Savigny,  s.   362,   Guthrie's  translation,  2d  ed.  p.   148). 

The  jurisdiction  in  suits  other  than  suits  for  dissolution  of  marriage 
is  conferred  on  the  court  by  the  6th  section  of  the  act  aforesaid.  By 
other  sections  judicial  separation  is  substituted  for  the  old  divorce  a 
mensa  et  thoro^  and  a  new  ground  for  separation,  namely,  desertion 
without  cause  for  two  years  and  upwards,  is  added.  Sect.  22  provides  as 
follows  :  "  Li  all  suits  and  proceedings  other  than  proceedings  to  dissolve 
any  marriage,  the  said  court  shall  proceed,  and  act,  and  give  relief  on  prin- 
ciples and  rules  which,  in  the  opinion  of  the  said  court,  shall  be  as  nearly 
as  may  be  conformable  to  the  principles  and  rules  on  which  the  Ecclesiasti- 
cal Courts  have  heretofore  acted  and  given  relief,  but  subject  to  the  pro- 
visions herein  contained,  and  to  the  rules  and  orders  under  this  act." 
There  are  no  special  provisions  of  the  act  or  rules  or  orders  which 
directly  affect  the  present  question.  The  present  suit  is  for  judicial 
separation  on  the  ground  of  cruelty.  Before  the  act  it  would  have 
been  a  suit  for  divorce  a  me^'sa  et  thoro  on  the  same  ground,  and  the 
inquiry  is  as  to  the  principles  and  rules  on  which  the  Ecclesiastical 
Courts  would   have  acted  in  tlie  circumstances.     The  petitioner  main- 


SECT.    IV.]  AKMYTAGE    V.    AEMYTAGE.  441 

tains  that  the  test  of  domicile  is  not  applicable  as  in  a  suit  for  dissolu- 
tion of  marriage,  and  that  the  Ecclesiastical  Courts  would  have  given 
her  relief  where  she  and  her  husband  are  both  residing  in  England  in  the 
circumstances  proved,  whereas  the  respondent  maintains  that  no  relief 
would  have  been  given  because  the  parties  are  not  domiciled  in  England, 
and  no  act  of  cruelty  has  been  proved  within  the  jurisdiction.   .  .  . 

Most  of  the  writers  on  private  international  law  and  the  conflict  of 
laws  treat  at  length  the  question  of  the  laws  and  principles  upon  which 
the  dissolubility  or  indissolubility  of  marriage  depends,  but  there  is  little 
to  be  found  in  the  works  of  such  writers  on  the  question  of  jurisdiction  to 
decree  the  separation  or  divorce  a  mensa  et  thoro  of  married  persons  who 
are  residing  but  not  domiciled  in  the  country  of  the  forum.  The  reasons 
are  not  far  to  seek.  Dissolution  of  marriage  has  been  permitted  in 
some  States  and  not  in  others,  and  has  been  allowed  in  some  States  on 
grounds  different  from  those  on  which  it  could  be  obtained  in  others. 
There  has  been  want  of  unanimity  as  to  the  forum  which  ought  to  take 
cognizance  of  the  question  of  divorce,  and  as  to  the  laws  to  be  applied 
and  the  recognition  to  be  accorded  in  one  State  to  a  decree  of  dissolu- 
tion of  marriage  pronounced  in  another.  Persons  domiciled  in  a  coun- 
try where  divorce  has  not  been  permitted,  or  only  permitted  on  certain 
grounds,  have,  in  order  to  obtain  divorces,  temporarily  resided  or 
assumed  domicile  in  another  country  where  divorce  has  been  permitted 
or  more  easily  obtained  than  in  the  former  country.  Hence  numerous 
difficult  and  varied  questions  have  arisen  and  been  discussed  in  re- 
ported cases  and  by  different  jurists  upon  the  question  of  dissolution 
of  marriage.  But  in  practice  suits  for  judicial  separation  or  divorce  a 
mensa  et  thoro  and  restitution  of  conjugal  rights  do  not  appear  to  have 
given  rise  to  similar  difficulties,  and,  therefore,  cases  and  discussions 
as  to  jurisdiction  in  these  suits  are  not  often  met  with.  Such  suits 
generally  occur  before  the  tribunals  of  the  country  in  which  the  parties 
are  in  fact  domiciled,  and  a  case  like  that  before  me  was  not  so  likely 
to  occur  in  former  days  as  at  the  present  time,  when  large  numbers  of 
people  are  to  be  found  residing  for  more  or  less  lengthy  periods  away 
from  the  place  of  their  domicile.^  .  .  . 

I  conclude  from  the  writers  to  whom  I  have  referred  that  most  of 
them  are  disposed  to  consider  that  the  courts  of  the  country  in  which 
the  parties  are  living,  though  not  domiciled,  ought  to  have  the  right  in 
a  matrimonial  suit  to  afford  protection  to  an  injured  party  from  the 
cruelty  of  the  other  party. 

Lord  Ilannen  may  possibly  have  had  such  a  case  in  his  mind  when, 
in  giving  judgment  in  Firebrace  /■.  Firebracc,  (1878)  4  P.  D.  63,  he 
said,  ''  The  domicile  of  the  wife  is  that  of  the  husband,  and  her  remedy 
for  matrimonial  wrongs  must  be  usually  sought  in   the   place  of  that 

1  Tlie  learned  ju(lf,'e  heie  cited  and  cxainiiicd  4  I'liil.  Int.  L.  n8'2  ;  Burf^e,  Colon. 
Laws,  668  ;  Bishop,  Mar.  &  Div.  s.  158  ;  (;utiiiii''s  Bar's  I'riv.  liitcrnat.  Law,  381  ; 
AVestiake,  Priv.  Internat.  Law.  a.  47  ;  Fraser,  Ilusb.  &  Wife,  1294  ;  Wliarton,  Contl. 
Laws,  s.  210.  —  Eu. 


4-42  AKMYTAGE    V.   ARMYIAGE.  [CHAP.    III. 

domicile  ;  "  but  added  :  "  It  is  not,  however,  inconsistent  with  this  prin- 
ciple that  a  wife  should  be  allowed  in  some  cases  to  obtain  relief  against 
her  husband  in  the  tribunal  of  the  country  in  which  she  is  resident, 
though  not  domiciled."  4  P.  D.  at  p.  67.  That  was  a  suit  for  resti- 
tution of  conjugal  rights  where  the  respondent,  the  husband,  who  was 
domiciled  in  Australia,  had  left  England  before  the  institution  of  the 
suit,  and  it  was  held  that  the  court  had  not  jurisdiction  over  him  after 
he  left  this  country,  and  that  the  suit  could  not  be  maintained.  Had 
he  remained  in  f^ngland  it  would  seem  from  the  cases  of  Newton  v. 
Newton,  (1885)  11  P.  D.  11,  and  Thornton  V.Thornton,  (1886)  11  P.  D. 
176,  that  the  suit  could  have  been  maintained.  In  the  recent  case  of 
Christian  v.  Christian,  (1897)  78  L.  T.  86,  the  President  said  that  a 
suit  for  judicial  separation  may  be  founded  upon  matrimonial  residence 
only  as  distinguished  by  our  law  from  domicile. 

Having  considered  sufficiently  for  the  purposes  of  the  case  the  opin- 
ions of  the  jurists  above  mentioned,  it  is  necessary  that  I  should  revert 
to  the  22d  section  of  the  Act  of  1857,  which  requires  the  court  in  such 
a  suit  as  the  present  to  act  conformably  to  the  principles  and  rules  on 
which  the  Ecclesiastical  Courts  had  theretofore  acted  and  given  relief. 

There  are  several  works  which  deal  more  particularly  with  the  juris- 
diction and  mode  of  proceeding  in  the  Ecclesiastical  Courts  —  e.g.. 
Burn's  Ecclesiastical  Law,  ed.  1842,  Rogers's  Ecclesiastical  Law,  ed. 
1849,  Shelford's  Law  of  Marriage  and  Divorce,  ed.  1841,  and  older 
works,  such  as  Godolphin's  Abridgment ;  but  I  cannot  trace  in  them 
any  statement  upon  the  precise  point  in  question,  and  the  principles  to 
govern  it  must  be  deduced  from  the  general  principles  and  practice  of 
the  courts.  These  are  stated  in  general  terras  so  far  as  concerns  the 
matter  under  consideration  by  James,  L.  J.,  in  his  judgment  above  re- 
ferred to,  see  Niboyet  v.  Niboyet,  4  P.  D.  1  at  p.  3,  where  the  jurisdiction 
of  the  Court  Christian  is  considered,  and  it  is  pointed  out  that  the  Church 
and  its  jurisdiction  had  nothing  to  do  with  the  original  nationality  or 
acquired  domicile  of  the  parties,  that  residence  as  distinct  from  casual 
presence  on  a  visit  or  in  itinere  was  an  important  element,  but  that 
residence  had  no  connection  with  or  little  analogy  to  the  question  of  a 
person's  domicile. 

In  my  opinion,  if  the  parties  had  a  matrimonial  home,  but  were  not 
domiciled  within  the  jurisdiction  of  an  Ecclesiastical  Court,  that  court 
would  have  interfered,  if  the  parties  were  within  the  jurisdiction  at  the 
commencement  of  the  suit,  to  protect  the  injured  party  against  the  other 
party  in  respect  of  the  adultery  or  cruelty  of  the  latter,  and  I  can  find 
no  authority  for  the  suggestion  made  by  the  respondent's  counsel  that 
such  interference  would  be  limited  to  cases  where  the  offence  com- 
plained of  was  committed  within  the  jurisdiction.  In  Warrender  v. 
Warrender,  (1835)  2  CI.  &  F.  488,  at  p.  562,  Lord  Lyndhurst  said; 
"The  law,  either  in  this  country  or  in  Scotland,  makes  no  distinction 
in  respect  of  the  place  of  the  commission  of  the  offence."  Although 
the  Ecclesiastical  Courts  could  not  extinguish  the  mutual  obligations  of 


SECT.  ;il.]  ARMYTAGE  V.   AKMYTAGE.  443 

husband  and  wife,  the}-,  acting  j^ro  salute  anhnce,  suspended  these  obli* 
gallons  in  order  to  protect  and  relieve  the  injured  party.  It  could  make 
uo  difference,  where  the  parties  were  residing  within  the  jurisdiction, 
that  the  necessity  for  protection  and  relief  arose  in  consequence  of 
adultery  committed  by  the  wrong-doer  while  temporaril}'  outside  the 
jurisdiction,  or  of  cruelty  committed  while  the  parties  were  temporaril}' 
outside  the  jurisdiction,  and  the  apprehension  of  further  acts  of  cruelt}' 
remained.  If  the  parties  were  within  the  jurisdiction,  and  the  necessi- 
ties of  the  case  demanded  that  one  of  them  should  be  protected  against 
a  matrimonial  wrong  done  by  the  other  of  which  the  courts  would  take 
cognizance,  I  cannot  doubt  that  the  courts  would  have  interfered.  The 
case  of  Manning  v.  Manning,  (1871)  L.  R.  2  P.  &  M.  223,  which  was 
relied  upon  by  the  respondent's  counsel,  is  no  authority  against  this 
view,  because  in  that  case  the  respondent  was  not  within  the  jurisdic- 
tion of  the  court,  and  the  petitioner  was  held  not  to  be  a  honajide 
resident  in  England.  If  the  respondent's  contention  be  correct  no 
decree  of  judicial  separation  could  be  made,  even  in  cases  like  Niboyet 
V.  Niboyet,  4  P.  D.  1,  where  the  parties,  though  not  domiciled,  were 
resident  for  3'ears  in  this  country. 

Then,  does  the  present  case  fall  within  the  principles  and  rules  upon 
which  the  courts  have  acted  ?  I  think  it  does.  The  wife,  an  English- 
woman, whose  domicile  of  origin  was  English,  and  who  has  resided  at 
times  in  England  with  her  husband,  is  forced,  by  the  cruelty  committed 
in  Itah'  by  her  husband,  a  domiciled  Australian,  to  seek  the  protection 
of  her  parents  in  England.  Though  legallv  domiciled  in  Australia,  as 
a  matter  of  fact  she  has  been  forced  to  separate  herself  from  her  hus- 
band and  establish  herself  in  a  home  of  her  own  in  this  country.  She 
and  her  husband  are  both  within  the  jurisdiction.  She  has  been  re- 
quired to  return  with  her  children  to  her  husband,  and  is  afraid  to  do 
so  owing  to  her  apprehension  of  a  repetition  of  the  acts  of  cruelty  which 
have  been  committed  against  her  while  they  were  living  together  abroad. 
It  is  against  the  repetition  of  apprehended  acts  of  cruelty  that  the  court 
grants  its  protection,  and,  unless  the  court  interferes,  there  is  nothing 
to  prevent  the  husband  from  forcing  himself  upon  his  wife  and  placing 
her  in  a  position  in  which  she  may  be  subjected  to  further  acts  of 
cruelty.  The  status  of  married  persons  within  the  country  is  recog- 
nized. Performance  of  the  duties  arising  from  the  marriage  tie  should 
be  required,  and  protection  afforded  against  an  abuse  of  the  position 
resulting  from  that  tie  where  necessar}'.  Police  protection  is  an  in- 
adequate remedy. 

It  may  be  objected  that  a  decree  of  judicial  separation  affects  the 
status  of  the  parties,  and  that  a  change  of  status  ought  on  principle 
onl}'  to  be  effected  by  the  courts  of  the  domicile.  But  the  relief  is  to  be 
given  on  principles  and  rules  which,  in  the  opinion  of  the  court,  shall 
be  as  nearly  as  may  bo  confoiniable  to  the  principles  and  I'ulcs  on 
which  the  Ecclesiastical  C(jiirts  gave  relief.  According  to  those  prin- 
ciples and   rules  cruelty  and    adultery  were   grounds    for  a  sentence  of 


444  ARMYTAGE   V.   ARMYTAGE.  [CHAP.    III. 

divorce  a  metisa  et  thoro  which  did  not  dissolve  the  marriage,  but 
merel}'  suspended  either  for  a  time  or  without  Umitation  of  time  some 
of  the  obligations  of  the  parties.     The   sentence  commonW  separated 
the  parties  until  they  should  be  reconciled  to  each  other.     The  relation 
of  marriage  still  subsisted,  and  the  wife  remained  a  feme  covert.     A 
woman  divorced  by  the  court  a  mensa  et  thoro  and  living  separate  and 
apart  from  her  husband  could  not  be  sued  as  a  feme  sole  (see  Lewis  v. 
Lee,  1824,  3   B.  &  C.  291).     The  effect  of  the  sentence  was  to  leave 
the  legal  status  of  the  parties  unchanged.    Although  a  sentence  of  judi- 
cial separation  is  to  have  the  effect  of  a  divorce  a  mensa  et  thoro  under 
the  old  law  (s.  16  of  the  Act  of  1857),  and  also  the  further  effect  of 
placing  the  wife  in  the  position  of  a  feme  sole,  with  respect  to  property 
which   she  may  acquire,  or  which   may  come  to  or  devolve  upon  her^ 
from  the  date  of  the  sentence  and  whilst  the  separation  continues,  and 
also  for  the  purposes  of  contract  and  wrongs   and   injuries  and  suing 
and  being  sued  during  that  period  (ss.  25  and  26  of  the  Act  of  1857)  ; 
yet  as  the  relief  to  be  given  now  is  to  be  given   according  to  the  prin- 
ciples and   rules  in  force  in  the  Ecclesiastical  Courts,  I  am  of  opinion 
that  the  effect  of  the  said  ss.  25  and  26,  if  they  affect  a  wife's  status 
within  the  meaning  of  the  term  as  applied  to  the  principles  under  con- 
sideration, which  is  doubtful,  is  not  to  deprive  the  court  of  the   power 
to  grant  relief  in  cases  where  it  would  have  been  granted  by  the  Eccle- 
siastical Courts. 

It  may  be  further  objected  that,  as  domicile  is  considered  a  test  of 
jurisdiction  in  cases  of  dissolution  of  marriage,  in  order  that  the  decree 
may  be  recognized  in  countries  other  than  that  of  the  domicile,  for  the 
same  reason  a  similar  test  should  be  applied  in  cases  of  judicial  separa- 
tion. But  the  reasons  which  apply  in  the  one  case  are  not  applicable 
to  the  other  ;  and  even  if  the  principle  should  be  established  that  the 
courts  of  tlie  country  of  the  domicile  of  the  parties  are  the  only  courts 
which  can  pronounce  a  decree  of  judicial  separation  which  ought  to  be 
recognized  in  other  countries,  in  my  opinion,  no  valid  reason  can  be 
urged  against  the  courts  of  a  country,  in  which  a  husband  and  wife  are 
actuullvliving,  pronouncing  a  decree  which  will  protect  the  one  against 
the  other  so  long  as  they  remain  within  the  jurisdiction. 

Li  the  present  case  the  wife's  domicile  is  legally  in  Australia,  but,  as 
a  matter  of  fact,  she  has  justifiably  separated  herself  from  her  husband 
and  made  her  home  in  England,  and  it  is  in  England  that  she  now  re- 
quires protection.  He  has  come  here  and  subjected  himself  to  the 
jurisdiction  of  the  courts  of  tl?is  country.  Could  anything  be  more 
unreasonable  than  for  this  court  to  hold  that  it  has  no  power  to  suspend 
the  wife's  obligation  to  live  with  her  husband  while  in  this  country,  and 
leave  her  to  proceed  in  the  courts  in  Australia  to  protect  herself  against 
her  husband  in  England?  It  may,  I  think,  be  safely  laid  down  tliat 
the  i:cclesiastical  Courts  would  formerlv,  and  this  court  will  now,  inter- 
fere to  protect  a  wife  against  the  cruelty  of  her  husband,  both  being 
within  the  jurisdiction,  when  the   necessities  of  the  case  require  such 


SECT.    IV.]  DITSOX    V.   DITSON.  445 

intervention.  I  tlierefore  hold  that  this  court  has  jurisdiction  to  enter- 
tain this  suit,  and  I  pronounce  a  decree  of  judicial  separation  in  favor 
of  the  petitioner  with  costs.  Having  held  that  the  court  has  jurisdic- 
tion to  entertain  the  suit,  I  think  it  follows  that  the  court  has  jurisdiction 
under  the  powers  expressl}'  conferred  upon  it  by  the  35tli  section  of  the 
said  Act  of  1857,  and  the  4th  section  of  the  Matrimonial  Causes  Act, 
1859,  to  make  provision  for  the  custody  of  the  children  of  the  marriage  ; 
and,  as  I  have  heard  the  case,  it  is  probably  more  convenient  that  I 
should  dispose  of  this  matter  rather  than  leave  it  for  further  contest  in 
the  chancery  proceedings.  I  will  hear  any  application  relating  to  the 
children  in  chambers. 


DITSON   V.    DITSON. 

Supreme  Court  of  Rhode  Island.     1856 

[Reported  4  Rhode  Island,  87.] 

Ames,  C.  J.^  It  is  a  well-settled  principle  of  general  law  upon  this 
subject,  that  the  tribunals  of  a  country  have  no  jurisdiction  over  a 
cause  of  divorce,  wherever  the  offence  may  have  occurred,  if  neither 
of  the  parties  has  an  actual  bona  fide  domicile  within  its  territory; 
and  this  holds,  whether  one  or  both  the  parties  be  temporarily  resid- 
ing within  reach  of  the  process  of  the  court,  or  whether  the  defend- 
ant appears  or  not,  and  submits  to  the  suit.  This  necessarily  results 
from  the  right  of  every  nation  or  State  to  determine  the  status  of  its 
own  domiciled  citizens  or  subjects,  without  interference  by  foreign 
tribunals  in  a  matter  with  which  they  have  no  concern.  Bishop  on 
Marriage  and  Divorce,  §  721,  p.  721,  2d  ed.  and  cases  cited.  We 
entirely  agree  with  the  judgment  given  by  the  Supreme  Court  of 
Massachusetts  on  this  point,  in  the  well-considered  case  of  Hanover 
V.  Turner,  14  iNIass.  227,  231,  in  which  both  this  rule,  and  the  reason 
for  it  are  stated  with  that  precision  and  largeness  of  view,  which 
indicate  that  the  coui't  fully  comprehended  the  question  before  them 
as  a  question  of  general  law;  a  kind  of  praise  which  cannot,  with 
any  justice,  be  bestowed  upon  many  American  cases  upon  this 
important  and  interesting  sul)ject.   .    .   . 

The  question  raised  by  the  case  at  bar,  and  for  the  decision  of 
which  in  the  afhrmative  this  court  is  said  by  the  Supreme  Court  of 
Massachusetts  in  Lyon  v.  Lyon,  2  Gray,  307,  to  have  pronounced 
a  decree  in  favor  of  Mrs.  Lyon  void  upon  general  principles  of  law, 
is,  whether  the  bona  fide  domicilation  of  tiie  petitioning  party  in  this 
State  is  sullieient  to  give  this  court  jurisdiction  to  grant  a  divorce  a, 
vinruln,  although  the  otiier  party  to  the  marriage  to  be  dissolved  has 
never  been  subject  to  our  jurisdiction,  never  been  personally  served 

1  Vmt  of  the  opinion  only  is  given.  —  Ku 


446  DITSON    V.   DITSON.  [CHAP.    III. 

with  notice  of  the  petition  within  the  State,  or  appeared  and  answered 
to  the  petition,  upon  constructive  notice,  or  upon  being  served  with 
personal  notice  of  it,  out  of  the  State  ?  In  other  words,  the  question 
is,  wliether,  as  a  matter  of  general  law,  a  valid  decree  of  divorce  a 
vinculo  can  be  passed  in  favor  of  a  domiciled  citizen  of  the  State^ 
upon  mere  constructive  notice  to  the  foreign  or  non-resident  party 
to  the  marriage,  against  whom,  or  to  dissolve  whose  marital  rights 
over  or  upon  the  petitioner,  the  aid  of  the  court  is  invoked?  .   .  . 

It  is  undoubtedly  true,  as  a  common-law  principle,  applicable  to 
the  judgments  of  its  courts,  that  they  bind  only  parties  to  them,  or 
persons  in  such  relation  to  the  parties  and  to  the  subject  of  the  judg- 
ment,  as  to  be  deemed   privies  to  it.     The  rule  of   this  system  of 
jurisprudence,  which  brings  privies  within  the  operation  of  the  notice 
served  upon  the  principals  to  a   judgment   and    binds   them  by  its 
effects,  is  founded  upon  quite  as  clear  a  policy,  and  is  sanctioned  by 
quite  as  complete  justice,  as  that  which  renders  the  judgment  obliga- 
tory upon  those  whom  they  represent.     It  is  founded  upon  the  great 
policy  ut  sit  finis  litum,  and  upon  the  necessity,  to  carry  out  this 
policy,  that  the  future  and  contingent  representatives  of  the  parties 
in  relation  to  the  subject  of  the  judgment  should  be  bound  by  it. 
Again,   there  is  no  system  of  jurisprudence,  which,  founded  as  the 
jurisdiction  of  the  court  is  upon  the  personal  service  of  the  subpoena, 
is  more  special  in  its  requisition  that  all  parties  interested  should 
be  served  in  the  suit,  in  order  to  be  bound  by  the  decree,  than  that 
administered  by  the  English  chancery;  yet  even  in  this  court,  from 
the  same  policy,  and  upon  the  same  necessity,  the   first  tenant   in 
tail,  or  the  first  person  entitled   to  the  inheritance,   if   there  be  no 
tenant  in  tail  living,  or  even  the  tenant  for  life,  as  the  only  repre- 
sentative to  be  found  of  the  whole  inheritance,  by  his  appearance  to 
the  suit  binds  to  the  decree  in  it  all  those  subsequently  and    con- 
tingently interested  in  the  estate;   the  court,   in  administering  this 
rule  of  representation    of  parties,  taking  care  only  that  the   repre- 
sentative be  one  whose  interest  in  the  subject  of  the  suit  is  such  as 
to  insure  his  giving  a  fair  trial  to  the  question  in  contestation,  the 
decision  of  which  is  to  affect  those  who  remotely  or  contingently  take 
after  him.     Again,  there  is  the  large  class  of  proceedings  in  rem^  or 
quasi  in  rem,  known   especially  to  courts  administering   public   or 
general  law,  and  borrowed  from  thence  into  every  system  of  jurispru- 
dence in  which,  the  jurisdiction  being  founded  upon  the  possession 
of  the  thing,  the  decree  binds  all  interested  in  it,  whether  within  or 
without   the   jurisdiction    of   the  nation    setting   up   the  court,  and 
whether  personally  or  constructively  notified  of  the  institution  or  cur- 
rency of  the  proceeding.     This,  too,  is  founded  upon  a  necessity  or 
high    expediency,  since,  without   it,   a  prize  or   instance  court,   for 
example,  could  not,  so  scattered  or  concealed  are  the  parties  inter- 
ested,  perform   any  of   the  functions  for  which,  by  the   general    or 
public  law,  it  is  set  up.     Proceedings  of  this  nature  must,  we  think,. 


SECT.   lY.]  DITSON   V.   DITSON.  447 

be  familiar  to  the  courts  of  Massachusetts;  and  probably  not  a  day 
passes  in  which  things  within  their  jurisdiction  are  not,  by  direct 
attachment  or  garnishee  process,  seized,  attached,  condemned,  and 
sold  under  their  judgments,  without  other  than  constructive  notice 
to  the  non-resident  owners  of  them,  in  order  that  these  courts  may 
do  justice  to  their  own  citizens,  or  even  to  alien  friends,  properly 
applying  to  them  for  relief.  Here,  too,  necessity  requires  the  courts 
to  dispense  with  personal  notice,  in  order  to  give  efifect  to  their 
judicial  orders;  since  otherwise,  the  State  might  be  full  of  the  prop- 
erty of  non-residents  and  aliens,  applicable  to  all  purposes  except 
the  commanding  ones  of  justice.  AVithout  doubt,  in  these  and  other 
like  cases,  the  general  law  in  dispensing  with  personal  notice  from 
necessity,  requires  some  fair  approximation  to  it,  b}'  representation, 
substitution,  or  at  least  such  publicit}',  as  under  the  circumstances,  is 
proper  and  possible,  or  the  proceeding  will  be  regarded  as  a  fraud  upon 
the  rights  of  the  absent  and  unprotected,  —  a  robber\'  under  the  forms 
of  law,  and  so  a  fraud  upon  law  itself.  It  is,  however,  a  ver}"  narrow 
view  of  the  general  law,  it  is  to  form  a  ver}'  low  estimate  of  the  wisdom 
which  directs  its  administration,  to  suppose,  that  when  it  can  do  justice 
to  those  within  its  jurisdiction  and  entitled  to  its  aid  only  by  dispensing 
with  personal  notice  to  those  out  of  it,  and  substituting  instead  what  i9 
possible  for  notice  to  them,  it  is  powerless  to  do  this,  and  so,  powerless 
to  help  its  own  citizens  or  strangers  within  its  gates,  however  strong 
may  be  their  claims  or  their  necessities.  Such  a  sacrifice  of  substance 
to  shadows,  of  the  purposes  to  the  forms  of  justice,  might  mark  the 
ordinances  of  a  petty  municipality,  but  could  hardly  be  supposed  to 
characterize  the  system  of  general  law. 

Now,  marriage,  in  the  sense  in  which  it  is  dealt  with  by  a  decree  of 
divorce,  is  not  a  contract,  but  one  of  the  domestic  relations.  In  strict- 
ness, though  formed  by  contract,  it  signifies  the  relation  of  husband  and 
wife,  deriving  both  its  rights  and  duties  from  a  source  higher  than  any 
contract  of  which  the  parties  are  capable,  and  as  to  these  uncontrollable 
by  any  contract  which  they  can  make.  When  formed,  this  relation  is 
no  more  a  contract  than  "  fatherhood  "  or  "  sonship  "  is  a  contract.  It 
is  no  more  a  contract  than  serfdom,  slavery,  or  apprenticeship  are  con- 
tracts, the  latter  of  which  it  resembles  in  this,  that  it  is  formed  by  con- 
tract. To  this  relation  there  are  two  parties,  as  to  the  others,  two  or 
more,  interested  without  doubt  in  the  existence  of  the  relation,  and  so 
interested  in  its  dissolution.  These  parties  are  placed  by  the  relation 
in  a  certain  relative  state  or  condition,  under  the  law,  as  are  parents 
and  children,  masters  and  servants  ;  and  as  every  nation  and  State  has 
an  exclusive  sovereignty  and  jurisdiction  within  its  own  territor3',  so  it 
has  exclusively  the  right  to  determine  the  domestic  and  social  condition 
of  the  person  domiciled  within  that  territory.  It  may,  except  so  far  as 
checked  by  constitution  or  treaty,  create;  by  law  new  rights  in,  or  im- 
pose new  duties  upon,  the  parties  to  these  relations,  or  lessen  both 
rights  and  duties,  or  abrogate  them,  and  so  the  legal  obligation  of  tho 


448  DITSON    V.    DITSON.  [CHAP.    III. 

relation  which  involves  them,  altogether.  This  it  may  do,  with  the 
exception  above  stated,  as  in  some  relations,  b}'  law,  when  it  wills ; 
declaring  that  the  legal  relation,  of  master  and  slave,  for  instance,  shall 
cease  to  exist  within  its  jurisdiction,  or  for  what  causes  or  breaches  of 
duty  in  the  relation,  this,  or  the  legal  relation  of  husband  and  wife,  or 
of  parent  and  child,  may  be  restricted  in  their  rights  and  duties  or  alto- 
gether dissolved  through  the  judicial  intervention  of  its  courts.  The 
right  to  govern  and  control  persons  and  things  within  the  State,  sup- 
poses the  right,  in  a  just  and  proper  manner,  to  fix  or  alter  the  status 
of  the  one,  and  to  regulate  and  control  the  disposition  of  the  other ; 
nor  is  this  sovereign  power  over  persons  and  things  lawfully  domiciled 
and  placed  within  the  jurisdiction  of  the  State  diminished  b}-  the  fact 
that  there  are  other  parties  interested  through  some  relation,  in  the 
status  of  these  persons,  or  by  some  claim  or  right,  in  those  things,  who 
is  out  of  the  jurisdiction,  and  cannot  be  reached  b}-  its  process.  No 
one  doubts  this,  as  a  matter  of  general  law,  with  regard  to  the  other  do- 
mestic relations,  and  what  special  reason  is  there  to  doubt  it,  as  to  the 
relation  of  husband  and  wife  ?  The  slave  who  flees  from  Virginia  to 
Canada,  —  no  treat}-  obliging  his  restoration  —  or  who  is  brought  by 
his  master  thence  to  a  free  State  of  the  Union  —  no  constitutional  pro- 
vision enforcing  his  return  —  finds  his  status  before  the  law  in  the  new 
jurisdiction  he  has  entered  changed  at  once  ;  and  no  one  dreams  that 
this  result  of  a  new  domicile  and  the  new  laws  of  it,  is  less  legally  certain 
and  proper  as  a  matter  of  general  law,  because  the  master  is  out  of  the 
new  jurisdiction  of  his  slave,  and  is  not,  or  cannot  be  cited  to  appear 
and  attend  to  some  formal  ceremony  of  emancipation.  It  is  true  that 
slavery  is  a  partial  and  peculiar  institution,  not  generally  recognized 
b}'  the  polic}'  of  civilized  nations  ;  whereas  marriage,  in  some  form,  is 
coextensive  with  the  race,  and,  as  a  relation,  is  nowhere  so  restrictive 
and  so  binding  in  its  obligations  as  amongst  the  most  truly  civilized 
portions  of  it.  Yet  each  nation  and  state  has  its  peculiar  law  and  pol- 
icy as  to  the  mode  of  forming,  and  the  mode  and  causes  for  judicially 
dissolving  this  last  relation,  according  to  its  right ;  and  all  that  other 
States  or  nations,  under  the  general  law  which  pervades  all  Christen- 
dom can  properly  demand  is,  that  in  the  exercise  of  its  clear  right  in 
this  last  respect  as  to  its  own  citizens  and  subjects,  it  should  pay  all, 
and  no  more  attention,  than  is  practicable  to  the  competing  rights  and 
interests  of  their  citizens  and  subjects.  It  should  give  the  non-residents 
and  foreigners,  parties  to  such  a  relation  of  general  legal  sanctit}-  as  to 
persons  of  the  like  description  interested  in  propert}'  within  its  territory, 
the  rights  to  which  are  also  everywhere  recognized,  at  least  such  notice 
by  publicit}'  before  it  proceeds  to  judicial  action,  as  can,  under  such 
circumstances,  be  given  consistently  with  any  judicial  action  at  all  effi- 
cient for  the  purposes  of  justice.  To  say  that  the  general  law  inexora- 
bly demands  personal  notice  in  order  to  such  action,  or,  still  worse, 
demands  that  all  parties  interested  in  a  relation  or  in  property  subject 
to  a  jurisdiction  should  be  physically  within  that  jurisdiction,  is  to  lay 


SECT.    IV.]  DITSON    i'.    DITSON.  449 

down  a  rule  of  law  incapable  of  execution,  or  to  make  the  execution  of 
laws  dependent  not  upon  the  claims  of  justice,  but  upon  the  chance 
locality,  or,  what  is  worse,  upon  the  will  of  those  most  interested  to 
defeat  it. 

It  i's  evident,  upon  examining  the  statutes  of  the  different  States  of 
the  Union,  that  legislation  vesting  jurisdiction  for  divorce  in  their  courts 
has  followed  no  principle  of  general  law  in  this  respect  whatsoever  ; 
some  statutes  making  the  jurisdiction,  or  sui)posing  it  to  depend  upon 
the  place  of  the  contract,  some  upon  tlie  place  of  the  delictum,  and 
some,  as  in  this  State,  and  as  they  should  do,  ui)on  the  domicile  of  the 
wronged  and  petitioning  party.     The  courts  of  each  State  exercise,  as 
they  must,  jurisdiction  upon  the  principles  laid  down  for  them  by  stat- 
ute ;  and  have  very  little  occasion,  unless  called  upon  to  review  the 
decree  of  some  neighboring  State,  to  attend  to  or  consider  any  general 
principles  pertaining  to  the  subject.     Engaged  in  tliis  latter  task,  they 
are  very  apt  to  confound  the  statute  principles  of  jurisdiction,  to  which 
they  are  accustomed,  with  the  principles  of  general  law  relating  to  it; 
notwithstanding  the  latter  so  obviously  grow  out  of  the  right  of  every 
State  to  regulate,  in  some  cases  by  law,  and  in  others  by  proper  judi- 
cial action,  according  to  the  nature  of  the  subject,  the  social  condition 
or  status,  as  it  is  called,  of  all  persons  subject  to  its  jurisdiction.     A 
singular  instance  of  forgetfulness  of  this  principle  of  "  State  sover- 
eignty "  is  afforded  by  the  case  of  Hull  v.  Hull,  2  Strobhart's  Equity 
Appeals,  174  ;  in  which  the  right  of  the  State  of  Connecticut  to  dissolve 
through  its  courts  under  the  law  of  that  State,  a  marriage  there  formed 
between  two  of  its  own  citizens,  upon  the  petition  of  a  wife  wliose  hus- 
band had  deserted  her  and  her  children  and  settled  in  South  Carolina, 
constructive  notice  only  having  been  given  to  the  absent  and  abscond- 
ing husband,  was  put  upon  the  ground  that  dissolution  of  the  contract 
of  marriage  upon  such  notice  was  part  of  the  law  of  the  place  of  the 
contract  and  so  part  of  the  contract  itself.     The  courts  of  tliat  State,  it 
seems,  whilst  forgetting  the  State  rights  of  their  northern  sister,  stren- 
uously insist  upon  the  rights  of  their  own  ;  holding,  according  to  tlie 
exploded  notion  of  Lolloy's  Case,  or  rather  of  McArthy  v.  McArthy, 
that  a  South  Carolina  marriage  cannot  be  dissolved  out  of  the  State  of 
South  Carolina,  although  any  other  may.     In  Irby  r.  Wilson,  1  Dev.  & 
Bat.  Eq.  R.  568,  576,  under  similar  circumstances,  except  that  in  this 
case  the  wife  was  the  deserting,  and  the  husl)and  thepetitioning  party, 
the  Sui)reme  Court  of  North  Carolina  held  that  a  Tennessee  divorce  was 
void,  upon  the  ground  hinted  at  in   Lyon   r.   Lyon,  sup.,  to  wit,  that 
such  a  proceeding  being  between   parties,  and  the  wife   iiaving  been 
constructively  notified  only,  althougli  such  notice  was  all  tliat  was  possi- 
ble, the  courts  of  Tennessee  could  not  alter  by  way  of  redress  the  status  of 
one  of  its  own  citizens  become  Iturdensonic  to  him  by  the  alleged  cause- 
less and  continued  desertion  of  his  wife.     Upon  the  same  principle,  and 
for  the  same  icaf^on.  of  course,  Nortii  Caiolina  could   not  relieve  from 
the  relation  its  citizen,  the  uile,  altliongh  her  husband  might  have  com- 


450  DITSON   V.    DITSON.  [CHAP.    III. 

pelled  her  to  flee  from  him  to  the  only  home  open  to  her  in  that  State, 
by  the  grossest  violation  of  the  duties  which  their  relation  to  each  other 
imposed  ;  and  thus,  both  these  conterminous  sovereignties  would  be 
powerless  for  justice,  over  and  upon  the  call  of  its  respective  domiciled 
inhabitant.  In  Pennsylvania,  the  jurisdiction  is  made  to  depend  upon 
jurisdiction  over  the  offender  at  the  time  of  the  offence  (Dorse^-  v.  Dor- 
sey,  7  Watts,  349),  as  if  the  lex  loci  delicti  were  to  govern  ;  in  Louis- 
iana, upon  like  jurisdiction,  unless  the  marriage  were  contracted  within 
the  State,  when,  we  suppose,  the  dellctimi  would  be  regarded  as  a  breach 
of  contract,  if  such  by  the  law  of  Louisiana  in  which  the  contract  was 
entered  into.  Edward  u.  Green,  9  La.  Ann.  R.  317.  Thus,  we  per- 
ceive, that  by  some  courts  marriage  is  treated  as  a  species  of  continuing 
executory  contract  between  the  parties,  the  obligations  of  which, 
and  the  causes  and  even  modes  of  dissolving  which,  are  fixed  by 
the  law  of  the  place  of  contract.  So  sacredly  local  is  it,  in  the  view 
of  some,  that  it  cannot  be  dissolved  but  bj'  the  courts  of  the  country 
in  which  it  was  formed.  Otliers,  perceiving,  that  though  a  contract, 
it  is  one  universally  recognized,  acknowledged  the  right  of  foreign  tri- 
bunals to  act  upon  it,  provided  that  in  doing  so,  tliey  govern  themselves 
not  b}"  tlie  onl}'  law  which  the}',  it  ma}'  be  by  statute,  can  administer, 
but  ascertain  whether  it  has  been  broken,  and  so  ought  to  be  dissolved, 
by  the  law  of  the  place  of  the  contract.  Some  treat  breaches  of  the 
contract  of  ever}'  degree  as  quasi  crimes,  to  be  punished  only  in  the 
place  in  which  they  were  committed,  provided  the  parties  be  then  there 
domiciled ;  and  others,  again,  qualify  this  by  an  exception  in  favor  of 
the  tribunals  of  the  place  of  contract ;  since  there  the  delicta  can  be 
treated  as  breaches  of  the  contract,  if  such  be  the  law  of  the  place  of 
contract.  If  marriage  be  a  contract,  or  the  breach  of  it  a  tort,  it  may 
well  be  asked,  why  are  they  not  at  least  personal  in  their  nature,  and 
transitory  in  their  legal  character  ?  passing  with  the  wronged  person 
wherever  he  or  she  passes,  for  redress  by  any  tribunal  of  the  civilized 
world,  which  can  obtain  jurisdiction  of  the  person  of  the  covenant 
breaker  or  trespasser  ? 

It  is  evident  that  from  such  confusion  of  decisions  and  reasons,  no 
general  principle  worth  considering  can,  by  any  process,  be  eliminated. 
Raising  ourselves  above  this  mist  of  misapplied  learning  and  ingenuity, 
and  looking  at  the  matter  simply  as  it  is,  it  is  obvious  that  marriage,  as 
a  domestic  relation,  emerged  from  the  contract  which  created  it,  is 
known  and  recognized  as  such  throughout  the  civilized  world  ;  that  it 
gives  rights  and  imposes  duties  and  restrictions  upon  the  parties  to  it, 
affecting  their  social  and  moral  condition,  of  the  measure  of  which 
every  civilized  State,  and  certainly  every  State  in  this  Union,  is  the  sole 
judge  so  far  as  its  own  citizens  or  subjects  are  concerned,  and  should 
be  so  deemed  by  other  civilized,  and  especially  sister,  States  ;  that  a 
State  cannot  be  deprived,  directly  or  indirectly,  of  its  sovereign  power 
to  regulate  the  status  of  its  own  domiciled  subjects  and  citizens,  by  the 
fact  that  the  subjects  and  citizens  of  other  States,  as  related  to  them, 


SECT.  TV.]  DITSON    V.    DITSON.  451 

are  interested  in  that  status,  and  in  such  a  matter  has  a  right,  under 
the  general  law,  judicially  to  deal  with  and  modify  or  dissolve  this  rela- 
tion, binding  both  parties  to  it  by  the  decree,  by  virtue  of  its  inherent 
power  over  its  own  citizens  and  sul)jects,  and  to  enable  it  to  answer 
their  obligatory  demands  for  justice  ;  and  finally,  that  in  the  exercise 
of  this  judicial  power,  and  in  order  to  the  validity  of  a  decree  of  divorce, 
whether  a  mensa  et  thoro  or  a  vinculo  matrimonii,  the  general  law  does 
not  deprive  a  State  of  its  proper  jurisdiction  over  the  condition  of 
its  own  citizens,  because  non-residents,  foreigners,  or  domiciled  inhabi- 
tants of  other  States  have  not  or  will  not  become,  and  cannot  be  made 
to  become,  personally  subject  to  the  jurisdiction  of  its  courts  ;  but  upon 
the  most  familiar  principles,  and  as  illustrated  by  the  most  familiar  anal- 
ogies of  general  law,  its  courts  may  and  can  act  conclusiveh'  in  such  a 
matter  upon  the  rights  and  interests  of  such  persons,  giving  to  them 
such  notice,  actual  or  constructive,  as  the  nature  of  the  case  admits  of, 
and  the  practice  of  courts  in  similar  cases  sanctions ;  the  purpose  of 
such  notice  being  to  banish  the  idea  of  secrecy  and  fraud  in  the  proceed- 
ing b}'  inviting  publicity  to  it,  as  well  as  to  give  to  persons  out  of  the 
jurisdiction  of  the  court  every  chance  possible,  under  the  circumstances, 
of  appearing  to  the  proceeding,  and  defending,  if  the}'  will,  their  own 
rights  and  interests  involved  in  it. 

These  views  are  supported  by  the  practice  of  the  States  of  Connecti- 
cut and  Tennessee  called  in  question,  as  we  have  seen  b}'  the  courts  of 
South  and  North  Carolina,  as  probablv  by  tlie  practice  of  man}'  other 
States,  and  certainly  by  the  long  continued  practice  of  our  own.  They 
are  sanctioned  by  the  well-considered  decision  of  Harding  v.  Alden, 
9  Greenl.  R.  140,  and  by  that  learned  jurisconsult,  the  late  Chancellor 
Kent,  in  his  note  on  that  case,  2  Kent's  Cora.,  110,  n.  b,  4th  ed.  They 
are  otherwise  best  sustained  by  authority.  Tolen  v.  Tolen,  2  Blackf. 
407.  Guembell  v.  Guembell,  Wriglit,  286.  Cooper  v.  Cooper,  7  Ohio, 
238.  Mansfield  v.  Mclntyre,  10  ib.  27.  Harrison  v.  Harrison,  19  Ala- 
bama, 499.  Hare  v.  Hare,  10  Texas,  355.  See  also  the  whole  subject 
discussed  in  Bishop  on  Marriage  and  Divorce,  passim,^  and  especially 
in  ch.  34  of  that  valuable  work. 

It  may  be  added,  that  the  distressing  consequences  which  otherwise 
might  arise  from  the  conflict  of  laws  and  decisions  upon  this  interesting 
and  important  subject  has  been  wisely  provided  against  by  a  clause  of 
tlie  Constitution  of  the  United  States,  and  can  find  a  remedy  under  it 
in  the  Supreme  Court  of  the  United  States,  as  tlie  court  of  last  resort, 
in  cases  demanding  its  api)lication.  15y  art.  4,  sect.  1,  of  the  Consti- 
tution of  the  United  States,  "  Full  Hiitii  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State."  As  this  has  been  construed  by  the  highest  authority  to  give 
in  every  other  State  the  same  effect  to  a  judgment  or  decree  of  a 
State  court  that  it  has  in  that  in  whicli  it  is  rendered  or  passed,  no 
serious  injury  can  be  done  to  the  proper  sul)jccts  of  our  judicial  admin- 
istration by  the  errors  and  mistakes  of  other  courts  with  regard  to  our 


452  DITSON    V.    DITSON.  [cHAP.    Ill, 

jurisdiction.  From  the  nature  of  the  topics  constantly  agitated  before 
it,  no  court  in  the  world  is  better  qualified  to  deal  with  questions  of 
general  law,  and  especially  with  one  involving,  as  that  before  us  does, 
the  rights  of  a  State  of  the  Union  ;  and  under  the  trained  qualifications 
of  tiie  members  of  the  court,  as  well  as  the  constitutional  power  of  the 
court  itself,  those  properly  subject  to  our  judgments  and  decrees  in  this 
respect,  as  in  all  others,  are  quite  safe,  having  honestly  obtained  them, 
in  acting  by  virtue  of  them. ^  .   .   . 

We  reserved  this  ease,  the  first  on  the  circuit  which  presented  the 
question  before  discussed  for  consideration,  it  being  admitted  that  the 
husband  of  the  petitioner  had  never  resided  with  her  in  this  State,  or 
even  as  the  proof  showed,  been  within  its  borders,  and  was  now  abroad 
in  parts  unknown,  and  was  not,  of  course,  personalh'  served,  because 
under  such  circumstances  he  could  not  be  personally  served  with  the  ordi- 
nary citation  issued  by  us  to  a  resident  defendant  to  such  a  petition. 
Under  the  authorized  rule  of  this  court,  in  regard  to  constructive  notice 
to  an  absent  defendant  to  a  petition  for  divorce,  upon  affidavit  of  the 
facts,  six  weeks'  notice  of  the  pendency  of  this  petition  was  given,  by 
publishing  the  same  for  the  space  of  six  weeks  next  before  the  sitting 
of  the  court  at  this  term  ;  and  it  is  evident  that  the  husband  of  this  lady 
knows,  as  from  his  conduct  it  is  apparent  that  he  cares,  nothing  about 
this  proceeding.  Whatever  was  the  former  domicile  of  the  petitioner, 
we  are  satisfied  that  she  is,  and  has,  for  upwards  of  the  last  three  years, 
been  a  domiciled  citizen  of  Rhode  Island,  —  her  only  home,  in  the  house 
of  her  father ;  and  that,  as  such  citizen,  and  upon  such  notice,  we  have 
power  and  jurisdiction  over  her  case,  and  to  change  her  condition  from 
that  of  a  married  to  that  of  a  single  woman,  granting  to  her  the  relief, 
which,  under  like  circumstances,  the  law  and  policy  of  Rhode  Island 
accords  to  all  its  citizens.  Let  a  decree  be  entered  divorcing  IVIary  Ann 
Ditson  from  George  L.  Ditson,  and  annulling  the  bond  of  matrimony 
now  subsisting  between  them  ;  and  that  the  name  of  the  said  Mary  Ann 
Ditson  be  changed  to,  and  she  be  hereafter  known  and  called  by  the 
name  of  Mary  Ann  Simmons,  according  to  the  prayer  of  her  petition. - 

1  Here  follows  a  discussion  of  the  question  of  domicile,  for  which  see  s.  c.  supra, 
p.  205,  —  Ed. 

2  Acc.  Cheever  v.  "Wilson,  9  Wall.  108  ;  Hanberiy  v.  Hanberry,  29  Ala.  719  ;  Chap- 
man u.  Chapman,  129  111.  386;  Harden  v.  Alden,  9  Me.  140;  Shreck  v.  Shreck,  3'2 
Tex.  578;  Hubbell  v.  Hubbell,  3  Wis.  662  ;  Stevens  v.  Fisk  (Can.),  8  L.  N.  42.  See 
Rhyms  v.  Rhyms,  7  Bush.  316  ;  Harteau  v.  Harteau,  14  Pick.  81 ;  Frary  v.  Frary,  10 
N.  H.  61. 

In  Massachusetts  the  court  at  the  domicile  of  either  spouse  is  competent,  at  the 
election  of  the  libellant.  Sewall  v.  Sewall,  122  Mass.  156;  Watkins  v.  Watkins,  135 
Mass.  83.  In  Pennsylvania  the  court  of  the  libellee's  domicile  alone  is  competent, 
unless  the  libellee  has  changed  his  domicile  since  cause  for  divorce  given.  Colvin  r. 
Reed,  55  Pa.  375;  Reel  v.  Elder,  62  Pa.  308.  In  several  States,  the  court  of  the  libel- 
lant's  domicile  alone  is  competent :  Irby  v.  Wilson,  1  Dev.  &  B.  Eq.  568  ;  White  v. 
White,  18  R.  L  292,  27  Atl.  506  ;  Butcher  v.  Butcher,  39  Wis.  651.  —  Ed 


SECT.    IV.]  STATE    C.    AKMINGTON.  453 

STATE   V.   ARMINGTON. 

SUPRKMK    CoiRT    OK    MlNNKSOTA.       1878. 
[Heported  25  Minnesota,  29.] 

The  defendant  was  tried  in  a  district  court  for  the  crime  of  polygamy. 
He  offered  in  evidence  a  certified  copy  of  a  decree  of  divorce  between 
liimself  and  his  former  wife,  granted  by  a  Probate  Court  in  Utah.  This 
was  excluded  by  the  court  on  the  ground  tliat  both  parties  were  at  that 
time  resident  in  ^Minnesota  :  the  defendant  excepted.  The  defendant 
was  convicted  and  sentenced  to  the  state  prison  for  two  years,  and 
appealed.^ 

Cornell,  J.  The  remaining  question  for  consideration  relates  to  the 
decision  of  the  court  excluding  what  purports  to  be  an  authenticated 
copy  of  a  decree  of  divorce  of  the  '•  probate  court  in  and  for  Box 
Elder  county,  in  the  territory  of  Utah,"'  entered  in  that  court  at  a  special 
term,  on  December  18,  1876,  in  an  action  between  John  L.  Armington, 
l)laintiflf,  v.  Martha  F.  Armington,  defendant,  dissolving  the  marriage 
contract  between  them.  Among  the  objections  made  to  this  evidence, 
was  the  one  that,  at  the  time  tiie  decree  purports  to  have  been  rendered 
both  parties  thei-eto  were  residents  of  this  (State,  and  had  been  for  sev- 
eral years  prior.  When  this  evidence  was  offered,  it  incontestably 
appeared,  from  the  testimony  already  given,  that  both  the  defendant 
and  his  said  wife,  Mrs.  Martlia  F.  Armington,  had  been  resident  citi- 
zens of  this  State,  and  domiciled  therein,  for  over  nine  years  prior  to 
the  date  of  the  decree,  and  that  they  were  both  actually  living  in  this 
State  at  the  time  of  its  entry.  It  did  not  appear,  nor  was  any  offer 
made  to  show  the  fact,  that  either  had  ever  been  domiciled,  even  tem- 
porarily, within  the  territory  of  Utah  ;  and  as  to  Mrs.  Armington,  it  is 
quite  clear  that  she  never,  at  any  time  during  the  progress  of  the  proceed- 
ings in  said  court,  was  outside  the  limits  of  this  State,  or  within  the 
territorial  limits  of  Utah.  As  to  Mr.  Armington,  the  most  that  can  be 
claimed  from  the  evidence  is  that  he  temporarily  left  his  residence  in 
Northfield,  in  this  State,  sometime  in  the  sunimer  of  1876,  and  returned 
in  August  or  Septeml)er  of  that  year.  Where  he  was,  during  this 
period,  does  not  affirmatively  appear  ;  but  it  does  affirmatively  appear 
that  he  has  resided  and  practised  medicine  in  iSorthfield  ever  since 
November  in  that  year.  Ui)on  this  evidence,  the  court  was  warranted 
in  assuming  that  neither  of  the  parties  ever  acquired  a  ho)}a  ^r/e  domicile 
or  residence  in  Utah,  and  that  both  were,  during  the  conduct  of  these 
divorce  proceedings,  domiciled  residents  of  this  State,  and  subject  to  its 
laws.  Upon  this  state  of  facts,  tiie  probate  court  of  Utah,  whatever 
may  have  been  the  extent  of  its  Jurisdiction  over  the  subject  of  divorce 
under  the  local   laws  of  that  territory  as  respects  its  citizens,  had  no 

^  This  short  statement  of  the  facts  necttssiiry  for  tlie  (luestioii  of  jiirisilietioii  is  sub- 
.slituted  for  the  stateineiit  of  tlie  Reporter,     i'art  of  tlie  opinion  only  is  given.    -  En. 


454  PEOPLE    V.    BAKEE.  [t  HAP.    III. 

jurisdiction  to  adjudicate  upon  tlie  marriage  relation  existing  between 
these  parties.  To  each  State  belongs  the  exclusive  right  and  power  of 
determining  upon  the  status  of  its  resident  and  domiciled  citizens  and 
subjects,  in  respect  to  the  question  of  marriage  and  divorce,  and  no 
other  State,  nor  its  judicial  tribunals,  can  acquire  any  lawful  jurisdic- 
tion to  interfere  in  such  matters  between  any  such  subjects,  when 
neither  of  them  has  become  bona  fide  domiciled  within  its  limits  ;  and 
any  judgment  rendered  by  any  such  tribunal,  under  such  circumstances, 
is  an  absolute  nullity.  Ditson  v.  Ditson,  4  R.  I.  93;  Cooley  Const. 
Lim.  400,  and  notes;  Kerr  v.  Kerr,  41  N.  Y.  272;  Hoffman  v.  Hoff- 
man, 46  N.  Y.  30  ;  Hanover  v.  Turner,  14  Mass.  227.  It  does  not 
appear  upon  the  face  of  the  judgment  or  decree,  or  in  any  of  its  recitals, 
that  either  of  the  parties  were  ever  residents  of  said  territory  of  Utah, 
or  domiciled  therein.  This  is  a  jurisdictional  matter,  which  should 
appear,  to  entitle  the  judgment  to  any  respect  whatever  ;  for  though  it 
be  conceded  that  the  probate  court  that  rendered  the  judgment  was  in 
the  legal  sense  a  court  of  record,  "  its  jurisdiction,"  if  any,  under  the 
local  laws  of  the  territory,  "over  the  subject  of  divorce,  was  a  special 
authority  not  recognized  by  the  common  law,  and  its  proceedings  in 
relation  to  it  stand  upon  the  same  footing  with  those  of  courts  of 
limited  and  inferior  jurisdiction,"  unaided  by  any  legal  presumptions 
in  their  favor.  Com.  v.  Blood,  97  Mass.  538.  The  evidence  was 
properly  excluded.^ 


PEOPLE  V.   BAKER. 
Court  of  Appeals,  New  York.     1879. 
{Reported  76  New  York,  78.] 

FoLGER,  J.  As  we  look  at  this  case,  it  presents  this  question :  Can 
a  court,  in  another  State,  adjudge  to  be  dissolved  and  at  an  end,  the 
matrimonial  relation  of  a  citizen  of  this  State,  domiciled  and  actually 
abiding  here  throughout  the  pendency  of  the  judicial  proceedings  there, 

1  Ace.  Harrison  v.  Harrison,  20  Ala.  629  ;  Dunham  v.  Dunham,  162  111.  589,  44 
N  E  841  ;  Hood  v.  S.,  56  Ind.  263;  Litovvich  v.  Litowich,  19  Kan.  451  ;  Thelau  v. 
Thelau,  75  Minn.  433,  78  N.  W.  108  ;  Smith  v.  Smith,  19  Neb.  706,  28  N.  W.  296  ; 
Firth  V.  Firth,  50  N.  J.  Eq.  137,  24  Atl.  916  ;  Van  Fosseu  v.  S.,  37  Oh.  S.  317.  This 
being  a  jurisdictional  question,  a  finding  by  the  court  that  the  libellant  is  domiciled 
will  not  give  it  jurisdiction,  nor  will  a  recital  of  domicile  in  the  judgment  render  it 
valid.  P.  V.  Dawell,  25  Mich.  247.  This  doctrine  is  applied,  even  if  the  non-resi- 
dents were  still  subjects  of  the  country  which  granted  the  divorce.  St.  Sure  v.  Lmds- 
felt,  82  Wis.  346,  52  N.  W.  308. 

A  bona  fide  temporary  residence,  without  domicile,  in  a  State  is  not  enough  to  give 
its  courts  jurisdiction.     Winship  v.  Winship,  16  N.  J.  Eq.  107. 

A  court  of  the  State  where  the  parties  are  domiciled  has  jurisdiction,  though  the 
cause  of  divorce  arose  elsewhere  :  Jones  v.  Jones,  67  Miss.  195,  6  So.  712  ;  and  though 
the  motive  for  acquiring  the  domicile  was  to  take  advantage  of  the  loose  laws  of 
divorce  :  Colburn  v.  Colburn,  70  Mich.  647,  38  N.  W.  607.  —  Ed. 


SECT.    IV.]  PEOPLE    V.    BAKER.  455 

without  ii  voluntary  appearance  by  bim  iliercin,  and  witli  no  actual 
notice  to  him  thereof,  and  without  i)ersonal  service  of  process  on  him 
in  tliat  State. 

We  assume,  in  putting  this  proposition,  that  the  defendant  in  error 
was  in  the  situation  therein  stated.  We  think  that  it  may  properly  be 
thus  assumed.  It  is  true,  that  the  first  which  is  disclosed  of  the  de- 
fendant in  error,  by  the  error-book,  shows  him  in  another  State,  in  the 
act  of  marriage  witli  Sallie  West,  the  other  party  in  the  judicial  pro- 
ceedings there  held.  It  does  not  appear  where  his  domicile  then  was, 
nor  where  it  had  been.  After  the  marriage,  however,  the  persons  then 
married  resided  at  Rochester,  in  this  State,  at  a  time  prior  to  the 
commencement  of  those  judicial  proceedings  ;  and  he  continued  to 
reside  in  that  city  until  in  1875,  and  after  the  final  judgment  tlierein 
was  rendered.  We  look  in  vain  in  tlie  error-book  for  any  exception, 
proposition,  or  suggestion,  which  presents  or  indicates,  that  the  case 
was  tried  at  tlie  sessions,  upon  the  theory  or  contention  that  the  defend- 
ant in  error  was  domiciled  in  Ohio,  or  tenii)orarily  abiding  there,  at  an}' 
time  during  the  pendency  of  the  judicial  proceedings  in  tiiat  State. 

We  come  back  then  to  tlie  question  we  liave  above  stated.  We  are 
ready  to  say,  that  as  the  law  of  this  State  has  been  declared  by  its 
courts,  that  question  must  be  answered  in  the  negative.  The  principle 
declared  in  the  opinions  has  been  uniform.  Sucli  is  the  utterance  in 
Borden  v.  Fitch,  15  J.  R.  121  ;  Bradshaw  r.  Heath,  13  Wend.  407; 
Vischer  v.  Vischer,  12  Barb.  640;  Kerr  v.  Kerr,  41  N.  Y.  272  ;  Hotf- 
man  /•.  Hoffman,  46  id.  30.  Nor  does  it  avail  against  them  to  say 
that  the  facts  of  those  cases  do  not  quadrate  exactly  with  those  of  the 
case  before  us.  The  utterances  which  we  speak  of  were  not  inconsid- 
erate expressions,  nor  dicta  merely.  They  were  considerate  steps  in 
the  reasoning,  leading  to  the  solemn  conclusion  of  tlie  court.  And  as 
touching  the  question  in  its  general  relations,  we  may  cite  Kilburn  v. 
Woodworth,  5  J.  R.  37  ;  Shumway  v.  Stillman,  4  Cow.  292  ;  S.  C. 
6  Wend.  447  ;  and  Ferguson  v.  Crawford,  70  N.  Y.  253,  where  the 
whole  subject  is  elaborately  considered.  We  know  of  no  case  in  our 
courts  which  has  questioned  the  principle  declared  in  these  authorities. 
Kinnier  v.  Kinnier,  45  X.  Y.  535, — sometimes  claimed  to  be  a  de- 
[):irture,  — does  not.  It  is  recognized  there,  that  to  make  valid  in  this 
State  a  jtidgment  of  divorce,  rendered  liy  a  court  of  another  State, 
tiiat  court  must  have  "  tlie  parties  within  its  jurisdiction,"  must  "  have 
jurisdiction  of  the  subject-matter  and  of  the  parties,"  who  "  must  be 
within  the  jurisdiction  of  the  court."  Hunt  /•.  Hunt,  72  N.  Y.  217, 
docs  not.  That  case  was  close.  It  went  upon  the  ground,  built  up 
with  elaboration,  that  both  parties  to  the  judgment  were  domiciled  in 
Loiiisian.T,  when  the  judicial  proceedings  were  there  begun  and  con- 
titiiicd  and  the  jiiilgment  was  rendered,  and  were  subject  to  its  laws, 
including  those  for  tlx;  substituted  service  of  process.  We  meant  to 
keep  the  reach  of  our  judgment  within  the  bounds  fixed  by  the  fact:^  in 
that  case. 


456  PEOPLE    V.    BAKER.  [CHAP    III. 

We  must  and  will  abide  by  the  law  of  this  State,  as  thus  declared, 
unless  the  adjudications  in  which  it  has  been  set  forth  have  been 
authoritatively  overruled  in  that  regard.  As  this  is  a  question  of  Fed- 
eral cognizance,  we  ought  to  inquire  whether  the  national  judiciary  has 
declared  anything  inconsistent  therewith.  Cheever  v.  Wilson,  9  Wall. 
108,  is  cited.  Clearl}-  that  case  is  not  applicable.  There  both  the 
parties  to  the  judgment  made  a  voluntary  appearance,  and  the  divorce 
court  had  jurisdiction  of  tlieir  persons,  as  it  had  of  the  subject-matter. 
'•  It  had  jurisdiction  of  the  parties,  and  the  subject-matter,"  says  the 
opinion  in  the  case  cited.  It  had  jurisdiction  of  the  plaintiff  in  the 
divorce  proceedings,  by  her  voluntary  api)earance  in  court,  as  a  peti- 
tioner, and  showing  a  bona  fide  residence  in  that  State,  in  the  way 
fixed  therefor  by  its  statute  law.  It  had  jurisdiction  of  the  person  of 
the  defendant  by  his  voluntary  appearance  in  the  court,  and  putting  in 
a  sworn  answer  to  the  petition.  The  dictum  in  the  case  of  Pennoyer 
V.  Neff,  95  U.  S.  714,  even  had  it  the  force  of  a  judgment,  does  not  go 
to  the  extent  needed  to  overrule  these  decisions  in  our  State.  It  is 
there  held,  that  to  warrant  a  judgment  in  persona-nx,  there  must  l)e 
personal  service  of  process,  or  assent  in  advance  to  a  service  other- 
wise. It  is  also  said  that  a  State  may  authorize  judicial  proceedings 
to  determine  the  status  of  one  of  its  own  citizens  towards  a  non-resi- 
dent, which  will  be  binding  within  the  State,  though  had  without  per- 
sonal service  of  process  or  appearance.  It  is  not  said,  much  less  is  it 
authoritatively  decided,  that  a  judgment  thus  got  may  do  more  than 
establish  the  status  of  the  parties  to  it,  within  the  State  in  which  the 
judgment  is  rendered.  The  case  just  cited  is  the  latest  annunciation 
known  to  us  of  the  Supreme  Court  of  the  United  States.  It  does  not 
overrule  the  declarations  of  our  own  courts.  It  rather  sustains  them. 
We  must  and  do  concede  that  a  State  may  adjudge  the  status  of  its 
citizen  towards  a  non-resident ;  and  may  authorize  to  that  end  such 
judicial  proceedings  as  it  sees  fit ;  and  that  other  States  must  acquiesce, 
so  long  as  the  operation  of  the  judgment  is  kept  within  its  own  con- 
fines. But  that  judgment  cannot  push  its  effect  over  the  borders  of 
another  State,  to  the  subversion  of  its  laws  and  the  defeat  of  its  policy  ; 
nor  seek  across  its  bounds  the  person  of  one  of  its  citizens,  and  fix 
upon  him  a  status,  against  his  will  and  without  his  consent,  and  in 
hostility  to  the  laws  of  the  sovereignty  of  his  allegiance. 

It  is  said,  that  a  judicial  proceeding  to  touch  the  matrimonial  rela- 
tion of  a  citizen  of  a  State,  whether  the  other  party  to  that  relation  is 
or  is  not  also  a  citizen,  is  a  proceeding  in  rem,  or,  as  it  is  more  gin- 
gerly put,  qua^i  in  rem.  But  it  was  never  heard  that  the  courts  of 
one  State  can  affect  in  another  State  the  rem  there,  not  subjected  to 
their  process,  and  over  the  person  of  the  owner  of  which  no  jurisdiction 
has  been  got.  Now,  if  the  matrimonial  relation  of  the  one  party  is  the 
res  in  one  State,  is  not  the  matrimonial  relation  of  the  other  party  a  res 
in  another  State  ?  Take  the  case  of  a  trust,  the  subject  of  which  is  lands 
in  several  States,  the  trustees  all  living  in   one   State.     Doubtless  the 


SECT.    IV.]  PEOPLE    V.    BAKER.  457 

courts  of  a  State  in  which  tlie  trustees  did  not  live  and  never  went, 
but  in  which  were  some  of  tlie  trust  lands,  could  proceed  in  re)n  and 
render  a  judgment  without  personal  service  of  process,  which  would 
determine  there  the  invalidity  of  the  trust  and  affect  the  possession 
and  title  of  the  lands  within  the  jurisdiction  of  those  courts;  but  it 
would  not  be  contended  that  the  judgment  would  operate  upon  the 
trustees  or  the  trust  lands  in  other  States,  so  as  to  affect  the  title  or 
the  possession  in  those  States.  It  could  operate  only  on  the  rem 
upon  which  the  process  of  those  courts  could  lay  hold.  And  why  is 
not  the  matrimonial  relation  of  a  citizen  of  New  York,  as  it  exists  in 
that  State,  if  it  is  a  ress  as  much  exempt  from  the  effect  of  such  a 
judgment  as  lands  in  that  State,  and  the  trust  under  which  they  may 
be  held?  Is  not  any  other  relation  of  mankind  as  much  a  revs  for  the 
toucli  and  adjudication  of  courts  as  that  of  husband  and  wife?  Take 
the  relation  of  a  minor  orphan  to  its  guardian,  or  to  those  entitled  by 
law  to  be  its  guardians.  That  is  a  status,  in  kind  as  the  matrimonial 
relation.  The  courts  of  one  State  may  act  and  appoint  a  guardian  for 
such  a  child,  if  it  is  within  their  territorial  jurisdiction  and  remains 
there  ;  but  the  appointment  is  not  operative  per  se  in  another  State 
into  which  the  child  goes.  Woodworth  v.  Spring,  4  Allen,  321.  It  is, 
of  course,  to  l^e  granted,  as  before  said,  as  a  general  proposition,  to 
which  it  is  not  now  needful  to  suggest  limitations,  that  each  State  may 
declare  and  adjudge  the  status  of  its  own  citizens.  And  hence  if  one 
part}'  to  a  proceeding  is  domiciled  in  a  State,  the  status  of  that  part\', 
as  affected  by  the  matrimonial  relation,  may  be  adjudged  upon  and 
confirmed  or  changed,  in  accordance  with  the  laws  of  that  State.  But 
has  not  the  State  in  which  the  other  party  named  in  the  proceedings  is 
domiciled,  also  the  equal  right  to  determine  his  status,  as  thus  affected, 
and  to  declare  by  law  what  may  change  it,  and  what  shall  not  change  it? 
If  one  State  may  have  its  policn-  and  enforce  it,  on  the  subject  of  mar- 
riage and  divorce,  another  may.  And  which  shall  have  its  policy  pre- 
vail within  its  own  borders,  or  shall  yield  to  that  of  another,  is  not  to 
be  determined  b^-  the  facility  of  the  judicial  proceedings  of  either,  or 
the  greater  speed  in  appealing  to  them.  That  there  is  great  diversit}' 
in  policy  is  verv  notable.  It  does  not,  however,  seem  to  tend  to  a 
state  of  harmonious  and  reliable  uniformity,  to  set  up  the  rule  that 
tlie  State  in  wliicli  the  courts  first  act  shall  extend  its  laws  and  polic}' 
beyond  its  borders,  and  bind  or  loose  the  citizens  of  other  sovereignties. 
It  will  prove  awkward,  and  worse  than  that,  afHictive  and  demoralizing, 
for  a  man  to  l)e  a  husband  in  name  and  under  disabilities  or  ties  in  one 
jurisdiction,  and  single  and  marriageable  in  another.  Yet  it  is  only  in 
degree  that  it  is  harder  than  the  results  of  other  conflicts  in  laws. 
It  is  more  sliarply  presented  to  us,  because  tenderer,  more  sacred, 
more  lasting  relations,  of  greater  consequence,  are  involved ;  and 
because  the  oc(;asions  calling  attention  to  the  conflict  have,  of  late 
years,  become  so  frequent.  Wh.nfevei'  we  may  iiold  in  the  United 
States,  it  will  not  chnii'j;!'   results  in   foreign    countries.     And  in  seek- 


458  PEOPLE    V.    BAKER.  [CHAP.    IIL 

ing  for  a  rule  which  shall  be  of  itself,  from  its  own  reason,  coirect,  we 
ought  to  find  or  form  one,  if  may  be,  that  is  generall}'  applicable. 
However  submissiveh'  we  must  concede  to  every  sovereignty  the  right 
to  maintain  such  degree  of  strictness  in  the  domestic  relations  as  it 
sees  fit,  within  its  own  territor}',  there  is  no  principle  of  comity  which 
demands  that  another  sovereignty  shall  permit  the  status  of  its  citizens 
to  be  affected  thereby,  when  contrary  to  its  own  public  policy,  or  its 
standard  of  public  morals. 

We  are  not,  therefore,  satisfied  with  the  doctrine  that  rests  the 
validity  of  such  judicial  ]:)roceedings  upon  the  right  and  sovereign 
power  of  a  State  to  determine  the  status  of  its  own  citizens,  and  be- 
cause it  ma}'  not  otherwise  effectually  establish  it,  asserts  the  power  to 
adjudge  upon  important  rights,  without  hearing  the  party  to  be  affected, 
and  without  giving  him  the  notice  which  is  required  by  the  principles 
of  natural  justice,  he  being  all  the  while  beyond  its  jurisdiction. 

Besides,  a  just  consideration  of  what  is  a  proceeding  in  rem,  and  of 
the  effect  of  a  judgment  therein,  shows  that  the  latter  does  not  reach 
so  far  as  is  contended  for  it.  It  is  a  proceeding  in  rem  merely.  The 
judgment  therein  is  not  usually  a  ground  of  action  m  personam  in 
anotlier  jurisdiction,  for,  as  a  proceeding  in  personam,  or  as  giving 
foundation  for  one,  the  court  gets  no  jurisdiction.  Pauling  v.  Bird's 
Exrs.,  13  J.  R.,  192.  How  then,  upon  such  basis,  can  the  judgment 
be  brought  here  and  made  the  foundation  of  an  action  against  one 
personally  ;  and  if  not  a  means  of  offence  in  personam,  how  a  moans 
of  defence  to  the  person,  when  sought  to  be  held  for  personal  acts,  in 
violation  of  the  laws  of  his  allegiance  ? 

The  consequences  of  such  want  of  harmoii}'  in  polity  and  proceed- 
ing, we  have  adverted  to.  The  extent  of  them  ought  to  bring  in  some 
legislative  remedy.  It  is  not  for  the  courts  to  disregard  general  and 
essential  principles,  so  as  to  give  palliation.  Indeed,  it  is  better,  by 
an  adherence  to  the  policy  and  law  of  our  own  jurisdiction,  to  make 
the  clash  the  more  and  the  earlier  known  and  felt,  so  that  the  sooner 
may  there  be  an  authoritative  determination  of  the  conflict. 

It  is  urged  upon  us  that  our  State  cannot  with  good  grace  hold 
invalid  this  judgment  of  a  court  of  Ohio,  when  our  own  Code  pro- 
vided, at  the  time  of  the  rendition  of  it,  for  the  giving  of  judgment  of 
divorce  against  a  non-resident,  by  like  substituted  service.  It  is  true 
that,  until  the  new  Code  of  Procedure,  such  had  been  the  case.  2  R.  L. 
197,  §  1  ;  1  id.  489,  §  9  ;  2  R.  S.  144,  §  38  ;  id.  185  ;  id.  187,  §  134  ; 
Laws  of  1862,  chap.  246,  §  1  ;  Old  Code,  §  135  ;  but  see  New  Code, 
§  438,  sub.  4.  This  is  but  to  say  that,  on  the  principle  of  the  comity 
of  States,  we  should  give  effect  to  this  judgment.  But  this  principle 
is  not  applied,  when  the  laws  and  judicial  acts  of  another  State  are 
contrar3-to  our  own  public  policy,  or  to  abstract  justice  or  pure  morals. 
The  policy  of  tliis  State  always  has  been,  that  there  ma}'  of  right  be 
but  one  sufficient  cause  for  a  divorce  a  vinculo  ;  and  that  policy  has 
been  upheld,  with  strenuous  effort,  against  persistent  struggles  of  indi- 


SECT.    I  V.J  PEOPLE   V.    BAKER.  459 

vidiials  to  vitiate  and  change  it.  And  though  it  is  lightly,  we  must 
think,  sometimes  said  that  it  is  but  a  technicalitj-,  that  there  must  be 
Ijersonal  notice  and  chance  to  be  heard,  to  make  a  valid  judgment 
affecting  personal  rights  and  conditions,  we  cannot  but  estimate  the 
principle  as  of  too  fundamental  and  of  too  grave  importance,  not  to  be 
shielded  b}-  the  judiciary,  as  often  as  it  is  in  peril. 

We  are  aware  tliat  there  are  decisions  of  the  courts  of  sister  States 
to  the  contrary  of  the  authorities  in  this  State.  They  are  ably  es- 
pressed;  they  are  honestly  conceived.  They  are,  however,  on  odp 
side  of  a  judicial  controversy,  the  dividing  line  whereof  is  well  marked, 
and  is  not  lately  drawn.  It  would  not  be  profitable  to  review  and 
discuss  them.  They  are  prevalent  witliin  the  jurisdictions  in  which 
they  have  been  uttered,  and  we  cannot  expect  to  change  them  there. 
Tliey  are  in  opposition  to  the  judgments  of  our  own  courts,  which  we 
must  respect,  and  with  whicli  our  reason  accords.  It  remains  for  the 
Supreme  Court  of  the  United  States,  as  the  final  arbiter,  to  determine 
liow  far  a  judgment  rendered  in  such  a  case,  upon  such  substituted 
service  of  process  shall  be  operative  without  the  territorial  jurisdiction 
of  tlie  tribunal  giving  it. 

There  is  an  exception  still  to  be  noticed.  The  court,  in  charging 
the  jury,  stated  to  them  that,  if  the  divorce  had  been  obtained  under 
the  laws  of  this  State,  though  the  defendant  in  error  would  not  have 
been  guilty  of  the  crime  of  bigamy,  yet  he  would  have  been  guilty  of 
a  misdemeanor,  and  that  that  was  a  pertinent  consideration  for  them. 
AVe  do  not  understand  that  this  was  meant  for  an  instruction  that  they 
could  convict  him  of  the  misdemeanor,  if  they  did  not  find  that  he  was 
guilty  of  the  higher  offence.  The  charge  is  to  be  taken  in  connection 
with  the  reception  in  evidence  of  the  Ohio  record,  on  the  question  of 
his  intent.  As  bearing  merely  upon  his  guilty  or  innocent  purpose,  it 
was  not  inappropriate  for  the  jurj'  to  consider  that  though  a  man,  from 
whom  his  wife  has  been  divorced  a  vinculo,  in  this  State  may  not,  by 
marrying  again,  incur  the  penalties  for  bigamy,  he  does  violate  the  de- 
cree which  forlnds  to  him  another  marriage  so  long  as  she  lives. 

We  are  of  opinion  that  the  judgment  of  the  General  Term  should  be 
reversed,  and  that  of  the  Sessions  be  atflrmed. 

All  concur,  except  Church,  Ch.  J.,  dissenting. 

Jud(jment  accordlnfjhj} 

1  Aoc.  Atherton  I'.  Atherton,  l.')5  N.  Y.  129,  49  N.  E.  933;  nnd  sec  Harris  v. 
Harris,  115  X.  C.  .587,  20  S.  E.  187  ;  Docmt  v.  Forsythe,  50  Oh.  S.  726,  35  N.  E.  105.5. 
In  Dunham  v.  Dunham,  162  111.  589,  44  N.  E.  841,  Caiitkr,  J.,  said  of  the  principal 
case  :  "  The  consequence  was  that  the  wife  was,  and  on  removing  to  New  Yoik  would 
continue  to  be,  a  sinjjle  woman,  who  niij^ht  lawfully  marry;  while  the  husband  was  a 
married  man,  having  for  his  wife  one  wlio  mitiht  at  the  same  time  become  or  be  the 
lawful  wife  iif  another  man.  We  cannot  regard  as  soiind  a  doctrine  leading  to  such 
results.  We  are  unable  to  see  the  force  of  the  reasoning  which  is  used  to  su]>port 
judicial  conclusions  that  on(f  of  the  marrierl  jiair  may,  in  one  jurisdiction,  by  virtue  of 
its  laws,  and  in  honest  compliance  with  them,  obtain  a  valid  decree  of  divorce,  wliich, 
aa  to  the  one  obtaining  it,  is  valid  and  binding  in  every  State  in  the   Union,  leaving 


460  TURNER   V.    THOMPSON.  [CHAP.   III. 


TURNER  V.   THOMPSON. 

High  Court  of  Justice,  Probate  Division.     1888. 

[Reported  13  Probate  Division,  37.] 

Sir  James  Hannen,  President.  The  facts  of  this  case  are  as  fol- 
lows :  The  petitioner,  Georgiana  Turner,  was  a  British  subject,  doiu- 
iciled  in  England,  and,  on  November  7,  1872,  she  married,  in  England, 
the  respondent,  who  is  a  citizen  of  the  United  States,  domiciled  there. 
He  was  in  the  United  States  marine  service,  and  he  was  from  time  to 
time  engaged  professionally  away  from  his  wife  ;  but  they  met  and 
cohabited  together  at  various  places  in  the  United  States  and  elsewhere. 
In  1879  she  instituted  proceedings  in  the  United  States  for  a  decree 
dissolving  the  marriage  on  the  ground  of  her  husband's  incompetency  : 
the  form  of  decree  in  the  United  States  being  a  dissolution  of  mar- 
riage, and  not,  as  in  this  country,  a  declaration  that  the  marriage  was 
nuU  and  void.  That  is  a  mere  difference  in  form.  The  marriage  was 
accordingly  dissolved,  and  she  has  now  returned  to  England  to  institute 
proceedings  here  for  the  purpose  of  having  her  marriage  declared  null 
and  void.  The  case  came  before  my  brother  Butt,  and  he  raised  the 
question  whether  there  was  anything  on  which  this  court  could  proceed, 
and  whether  this  court  has  any  jurisdiction,  because,  of  course,  if  the 
marriage  were  absolutely  dissolved  by  the  court  in  the  United  States, 
then  there  exists  no  marriage  between  the  parties  upon  which  this  court 
can  be  called  on  to  pronounce  an  opinion.  Mr.  Justice  Butt  ordered 
the  case  to  be  argued  by  the  Queen's  Proctor,  and  it  now  comes  before 

me. 

I  am  of  opinion  that  this  court  has  no  jurisdiction,  in  the  sense  I 
have  already  mentioned  ;  that  is,  that  the  marriage  was  totally  and 
absolutely  dissolved  by  the  decree  of  the  court  in  the  United  States  ; 
and  therefore  that  there  is  no  marriage  between  the  parties,  which  could 
be  dissolved  or  declared  null  and  void  by  this  court. 

such  a  one  single,  and  free  to  remarry  in  any  State,  while  the  matrimonial  bonds  are 
still  unsevered^as  to  the  other  party,  making  him  a  bigamist  should  he  remarry,  and 
his  children  the  fruit  of  such  remarriage,  illegitimate.  It  would  seem  to  be  as  logical 
to  say  that  one  of  the  Siamese  twins  might  have  been  severed  trom  the  other  without 
that  other  being  severed  from  the  one.  It  should  not  be  forgotten  that  it  is  the  policy 
of  a  -reat  majority  of  the  States,  and  of  our  own  State  as  well,  as  established  by 
legislative  enactments,  to  grant  judicial  decrees  of  divorce  to  bona  fide ^  residents  who 
comply  with  the  statutory  requirements  where  substituted  service  merely  is  had  upon 
the  non-resident  party.  To  hold  such  decrees  valid  only  within  the  jurisdiction  granting 
them  or  valid  only  as  to  those  in  whose  favor  they  are  granted,  leaving  the  non- 
resident partv  still  bound,  would  not  only  be  inconsistent  with  the  policy  of  our  own 
law«  and  in  Violation  of  interstate  comity,  but  would,  when  it  is  considered  how  great 
is  the  number  of  such  decrees  entered  every  year,  eventually  lead  to  the  most  per- 
plexing and  distressing  complication  in  the  domestic  relations  of  many  citizens  ii. 
the  different  States." 


SECT.    IV.]  CUMMIXGTON    V.   BELCHERTOWN.  -^"^1 

The   marriage,  though   it   took  place   in   England,  must,  no  doubt 
according  to  the  decision  in  Harvey  r.  Farnie,  8  App.  Cas.  43,  which 
went  up  to  the  House  of  Lords,  be  taken  to  be  jn-rma  facie ^n  Ameri- 
can marriage,  because  the  husband  was  domiciled  in  the  United  States, 
and  pnmc^Afcie  the  courts  of  the  place  of  his  domicile  had  jurisdiction 
in  the  matter.     If  the  parties  had   remained  in  England  then,  under 
some  circumstances,  the  case  of  Niboyet  v.  Niboyet,  3  P.  D.  o"..  is   an 
authority  for  saving  that  the  courts  of  this  country  would  have  junsdic- 
tion.     But,  as  a  matter  of  fact,  these  parties  after  the  solemmzation  ot 
the  marriage  went  to  the  United  States  and  there  took  up  their  perma- 
nent abode.     I  am  of  opinion  that  the  wife  did   completely  acquire  a 
domicile  in  the  United  States.     I  know  it  is  alleged  on  her  behalf  that 
that  is  not  so.     It  is  said  she  was  by  origin  a  British  subject,  and  as  by 
tlie  law  of  England  the  matter  in  dispute  between  her  and  her  husband 
would  have  been  disposed  of  in  the  form  of  a  declaration  that  the  mar- 
riage was  null,  she  therefore  was  entitled  to  treat  the  marriage  as  null 
and  void  from  the  beginning,  so  that  she  never  lost  her  English  domicile 
at  all      The  fallacv  which  underlies  that  argument  appears  to  me  to  be 
evident  from  this.'  A  woman  when  she  marries  a  man,  not  only  by  con^ 
struction  of  law,  but  absolutely  as  a  matter  of  fact,  does  acquire  the 
domicile  of  her  husband   if  she   lives  with  him  in  the  country  of  his 
domicile.     There  is  no  ground  here  for  contending  that  she  did   not 
take  up  that  domicile.     She  had  the  intention  of  taking  up  her  perma- 
nent abode  with  him,  and  of  making  his  country  her  permanent  home. 
It  is  to  be  remembered   that  a  marriage  by  the  law  of  England,  when 
one  of  the  parties  is  incompetent,  is  not  a  marriage  absolutely  void,  but 
only  voidable  at  the  instance  of  the  injured  party.     If  she  had  thought 
fit  she  might  have  remained  a  wife,  enjoying  all   the   advantages^  of  a 
wifp    save  that  of  a  marital  intercourse.       It  was  only  in  18/9,  the 
marriage  having  taken  place  in  1872,  that  she  instituted  proceedings 
.  for  getting  that  marriage  put  aside. 

I  am  of  opinion  that  at  the  time  of  the  institution  of  that  suit,  which 
is  the  turning  point  of  the  proceeding,  her  domicile  was,  in  fact  and  in 
law  in  the  United  States  ;  therefore  the  United  States  courts  had  juris- 
diction in  the  matter,  and  upon  this  ground  I  think  the  petition  must 
be  dismissed. 


CUMMINGTON   v.   BELCHERTOWN. 

SuPKKME  Judicial  Coukt  of  ^SIassacuusetts.     1889. 

[Reported  149  MastachiiseUs,  223.] 

Devens  .J  Mrs.  Angie  L.  Richards,  the  expenses  of  whose  support 
as  an  insane  pauper  are  Lore  in  controversy,  had,  as  Angle  L.  Root,  a 
legal  settlement  in  the  defendant  town  at  the  time  of  her  marriage. 
She  acquired  one  in  the  plaintiff  town  by  her  marriage,  on  June  10, 


462  CUMMINGTON   V.    BELCHERTOWN.  [CHAP.    in. 

1873,  with  Charles  A.  Richards,  who  was  there  settled.  Milford  ?•. 
Worcester,  7  Mass.  48.  It  is  the  contention  of  the  plaintiff,  that,  the 
marriage  of  the  pauper  having  been  legally  annulled  as  having  been 
procured  by  fraud,  her  settlement  in  Cummington  thus  gained  is  de- 
stroyed, and  that  in  Belchertown  is  revived,  it  having  been  suspended 
only  during  the  de  facto  existence  of  the  marriage. 

It  was  held  in  Dalton  v.  Bernardston,  9  Mass.  201,  that  a  woman  ac- 
quiring a  settlement  by  her  marriage  under  the  St.  of  1793,  c.  34  (Pub. 
Sts.  c.  83,  §  1,  cl.  1),  did  not  lose  her  settlement  b^-  a  divorce,  except 
for  a  cause  which  would  show  the  marriage  to  have  been  void.  In  the 
latter  case,  there  would  have  been  no  such  marriage  as  the  statute  in- 
tended as  the  means  of  acquiring  a  settlement.  Assuming  that  the  law 
would  be  the  same  where  a  marriage  not  originally  void,  but  voidable 
on  the  ground  of  fraud,  or  for  any  other  reason,  was  declared  void,  we 
consider  the  question  whether  the  plaintiff  has  shown  any  sufficient  evi- 
dence of  a  decree  annulling  the  marriage  by  which  the  defendant  or 
others  collaterally  affected  by  the  marriage  or  the  dissolution  of  it  would 
be  bound.  If  the  pauper  herself  would  not  be  bound  by  such  a  decree, 
it  is  quite  clear  that  the  defendant  would  not  be,  whether  the  marriage 
was  absolutely  void  or  voidable  only.  Not  being  a  party  to  the  decree, 
and  unable,  therefore,  to  take  any  steps  to  reverse  it,  the  defendant  is 
not  precluded  from  showing  in  a  collateral  proceeding  that  the  decree 
was  erroneous,  or  that  it  has  no  effect  such  as  the  plaintiff  claims  for 
it.  The  plaintiff  contends  that  a  decree  valid  as  against  the  pauper,  by 
which  her  marriage  with  Richards  has  been  annulled,  has  been  rendered 
by  the  Supreme  Court  of  New  York,  having  jurisdiction  both  of  the 
subject-matter  and  of  the  parties. 

It  appeared  that  Richards  and  his  wife  lived  together  in  this  State  for 
about  a  year  and  three  months,  when,  in  October,  1874,  Mrs.  Richards 
was  adjudged  insane,  and  legally  committed  to  tlie  lunatic  hospital  in 
Northampton,  where  she  remained,  with  the  exception  of  short  inter- 
vals of  time  during  which  she  was  in  the  custody  of  her  parents,  until 
September  20,  1877,  when  she  was  again  and  finally  committed  to  the 
hospital,  and  has  remained,  and  now  remains,  liopelessly  insiine.  Rich- 
ards never  cohabited  with  her  after  her  first  committal  to  the  hospital ; 
and  at  some  time  thereafter,  but  at  what  time  does  not  appear,  removed 
to  the  State  of  New  York,  without,  however,  any  purpose  of  there  ob- 
taining a  divorce,  and  without  then  having  it  in  mind.  On  November 
14,  1881,  Richards,  having  only  a  short  time  before  been  informed  for 
the  first  time  tliat  his  wife  had  Iieon  insane  before  their  marriage,  com- 
menced a  proceeding  in  New  York  to  have  the  marriage  annulled,  on 
the  ground  that  he  was  induced  to  enter  into  it  by  fraud,  and,  after  a 
notice  to  Mrs.  Richards  by  a  summons  served  upon  her  while  an  inmate 
of  the  Northampton  Hosintal,  a  decree  annulling  the  marriage  on  the 
ground  that  the  consent  of  Ricliards  to  the  mairiage  was  obtained  by 
fraud  was  rendered  on  March  30,  1S.S2.  A  '-transcript  of  the  doings 
and  record  of,  and  testimony  in,  the  Siipi-.-in"  Court,  County  of  Fulton, 


SECT.    IV.]  CUMMINGTON    V.    BELCHERTOWN.  463 

State  of  New  York,"  was  used  at  the  trial  in  the  Superior  Court,  and 
the  decree  there  rendered  was  relied  on  b}'  the  plaintiff  as  establish- 
ing the  fact  of  a  legal  dissolution  of  the  marriage,  by  which  the  rights 
of  the  plaintiff  and  of  the  defendant  would  be  affected  in  this 
Commonwealth. 

While  b}'  the  Constitution  of  the  United  States,  Art.  4,  §  1,  full  faith 
and  credit  are  to  be  given  to  the  judgments  of  other  States,  the  juris- 
diction of  the  courts  rendering  them  is  open  to  inquiry,  both  as  regards 
the  subject-matter  of  the  controversy  and  the  parties  thereto.  The  re- 
citals of  the  record  are  not  conclusive  evidence,  and  a  part}',  or  one 
affected  collaterally  by  the  judgment,  may  show  that  the  court  had  no 
jurisdiction  over  the  party  such  as  it  assumed  to  exercise.  Mrs.  Rich- 
ards was.  when  the  proceedings  were  commenced  and  concluded,  an 
utterly  insane  woman.  This  .not  only  appears  by  the  finding  of  the 
Superior  Court,  but  by  all  the  proceedings  of  the  New  York  court.  It 
is  averred  in  the  petition  addressed  to  it,  and  the  allegations  of  the 
petition  are  found  by  the  referee  to  whom  the  inquiries  of  fact  were 
referred,  and  by  that  court,  to  have  been  true.  It  appears  also  by  the 
return  of  the  summons,  and  most  clearly  by  the  evidence  taken  before 
the  referee.  At  no  time  did  she,  or  any  one  on  her  behalf,  appear  be- 
fore the  referee  or  the  court.  Yet  no  guardian,  next  friend,  or  otlier 
person  was  appointed  to  represent  her,  and  a  decree  annulling  her  mar- 
riage was  rendered  against  a  person  whom  the  record  and  evidence 
showed  to  be  insane,  and  whose  rights  were  wholly  unprotected.  She 
had  no  actual  residence  in  New  York  at  any  time.  Her  husband  had 
abandoned  her  here  on  account  of  her  insanity  some  time  before  he 
went  to  New  York,  had  made  no  provision  for  her  support,  and  she  had 
always  resided  in  this  State,  wliich  was  her  domicile  of  origin. 

That  a  decree  of  divorce  rendered  under  sin)ilar  circumstances  of 
residence  and  condition  of  the  wife  in  another  State  would  not  be  re- 
cognized in  the  State  of  New  York,  or  allowed  in  any  way,  directly  or 
indirectly,  there  to  affect  any  rights,  whether  of  person  or  property,  of 
the  part}'  against  whom  it  had  l)eeu  made,  appears  clearly  from  its 
decisions.  People  v.  Baker,  76  N.  Y.  78  ;  Jones  v.  Jones,  108  N.  Y. 
41  r>.  We  shall  not  have  occasion  to  consider  what  would  be  the  effect 
tiiat  should  be  given  here  to  a  decree  of  divorce,  under  the  circum- 
stances above  stated,  if  such  had  been  rendered  by  the  New  York 
court.  Such  a  decree  necessarily  implies  the  original  existence  of  a 
lawful  marriage.  A  decree  annulling  a  marriage  upon  the  ground  that 
it  was  contracted  under  such  circumstances  that  the  party  petitioning 
has  a  right  to  have  it  so  annulled,  stands  upon  quite  different  grounds. 
Tiie  validity  of  a  marriage  depends  u[)on  the  question  whether  it  was 
valid  where  it  vvas  contracted.  To  this  rule  there  are  but  two  excep- 
tions :  luarriages  which  are  deemed  contrary  to  the  law  of  nature  as 
generally  recognized  in  Christian  countries,  and  those  marriages  which 
the  Legislature  of  the  Commonwealth  has  declared  shall  not  be  valid  be- 
cause contrary  to  the  policy  of  our  own  laws.     Commonwealth  r.  L:uie, 


464  CUMMINGTON    V.    BELCHERTOWN.  [cHAP.  III. 

113  Mass.  458.  Even  when  parties  had  gone  from  this  Commonwealth 
into  another  State  with  intent  of  evading  our  own  laws,  and  had 
there  married,  it  was  held  reluctantly,  in  the  absence  of  a  statute  declar- 
ing marriage  solemnized  there  with  such  intent  to  be  void  here,  that 
their  validity  must  be  recognized.  Medway  v.  Needham,  16  Mass.  157; 
Putnam  v.  Putnam,  8  Pick.  433, 

Without  discussing  the  failure  to  appoint  a  guardian,  the  service  in 
the  case  at  bar  on  Mrs.  Richards  can  have  given  the  New  York  court 
no  jurisdiction  over  her  personally.  To  hold  that  her  domicile  might 
be  changed  to  any  other  State  by  the  act  of  her  husband  in  removing 
thereto  after  he  had  abandoned  her  here  and  ceased  to  support  her,  and 
thus  that  she  could  be  deprived  of  the  protection  in  her  marital  rights, 
whether  of  person  or  property,  which  this  State  could  extend  to  her, 
would  be  to  use  the  legal  fiction  of  the  unity  created  by  the  marriage  to 
her  serious  injury,  and  to  work  great  injustice. 

If  the  decree  of  the  New  York  court  is  to  have  any  validity  liere,  it 
must  be  on  grounds  of  comity.  Blackinton  v.  Blackinton,  141  Mass. 
432,  436.  There  can  be  no  ground  of  comity  which  requires  that  we 
sliouid  recognize  the  decree  of  a  New  York  court  annulling  a  Massa- 
chusetts marriage  between  Massachusetts  citizens,  unless  it  had  jaris- 
diclion  of  both  the  parties;  nor  even  if  it  did  have  such  jurisdiction 
slionld  il  be  recognized  here,  unless  it  was  based  upon  grounds  which 
are  here  held  to  be  sufficient.  Suppose  two  citizens  of  Massachusetts 
are  married  here,  eacli  of  the  age  of  eighteen  years,  have  children,  and 
then  move  to  New  York,  where  the  husband  obtains  a  decree  of  nullity 
on  tlie  ground  that  persons  under  the  age  of  twenty-one  years  cannot 
lawfulh  uiarry.  The  children  are  not  therefore  rendered  illegitimate  in 
Massacluisetts,  so  that  they  cannot  here  inherit  their  father's  lands. 
Marriages  between  blacks  and  whites  are  still  prohibited  in  some  of  the 
States,  but  a  decree  in  such  a  State  annulling  a  marriage  of  this  char- 
acter valid  where  contracted  could  not  here  be  regarded.  Illustrations 
of  this  sort,  growing  out  of  the  different  laws  as  to  marriage  in  the  sev- 
eral States,  could  readily  be  multiplied.  The  right  of  a  State  to  declare 
the  present  or  future  status,  so  far  as  its  own  limits  are  concerned,  of 
persons  there  lawfully  domiciled,  cannot  be  extended  so  as  to  enable  it 
to  determine  absolutely  what  such  status  was  at  a  previous  time,  and 
wiiile  they  were  subject  to  the  laws  of  another  State.  The  decrees  of  its 
courts  in  the  latter  respect  must  be  subject  to  revision  in  the  State  where 
rights  were  then  existing,  or  had  been  acquired.  Blackinton  v.  Black- 
inton, 141  Mass.  432. 

The  cause  alleged  and  found  by  the  New  York  court  was  not  sufficient 
to  annul  a  marriage  contracted  in  Massachusetts  between  its  citizens 
according  to  the  laws  of  this  Commonwealtli.  Assuming  that  a  mar- 
riage may  here  be  declared  void  on  account  of  fraud,  and  assuming  that 
fraud  is  a  cause  which  will  enable  the  party  defrauded  to  maintain  a 
libel  for  the  dissolution  of  the  marriage  which  has  thereby  been  pro- 
cured, although  the  word  "  fraud,"  which  is  found  in  the  Gen.  Sts.  c.  107, 


SECT.    IV.]  CUMMINGTOX    V.    BELCH EUTOWN.  465 

§§  4,  5,  is  omitted  in  the  Pub.  Sts.  c.  145.  §  11,  no  fraud  was  shown  such 
as  would  enable  a  party  here  to  avoid  a  marriage.  Mrs.  Richards  was 
sane  at  the  time  of  her  marriage,  and  entirely  competent  to  make  the 
marriage  contract ;  she  had  l)een  insane  at  a  previous  period,  but  had 
recovered  from  such  attacks,  and  the  fact  of  such  previous  insanity  was 
concealed  from  her  husband  by  Mrs.  Richards  herself  and  her  family, 
in  the  hope  that  marriage  would  prove  beneficial  to  her  health.  She 
lived  with  her  husband  about  a  year  and  three  months  before  symptoms 
of  insanity  again  developed  themselves.  The  possibilit}^  or  probabilit}' 
that  she  might  again  become  insane,  growing  out  of  the  fact  that  she 
had  previousl}'  been  so,  did  not  constitute  such  a  fraud  as  entitled  her 
husband  to  have  tlie  marriage  dissolved. 

There  was  no  fraud  of  such  a  character  as  to  affect  the  basis  or  the 
essential  character  of  the  contract.  Donovan  v.  Donovan,  9  Allen,  140; 
Foss  V.  Foss,  12  Allen,  26.  "  It  is  not  to  be  supposed  that  every  error 
or  mistake  into  which  a  person  may  fall  concerning  the  character  or 
qualities  of  a  wife  or  '.lusband,  although  occasioned  by  disingenuous  or 
eA'en  false  statements  or  practices,  will  afford  sufficient  reason  for 
annulling  an  executed  contract  of  marriage.  .  .  .  Therefore  no  mis- 
conception as  to  the  character,  fortune,  health,  or  temper,  however 
brought  about,  will  support  an  allegation  of  fraud  on  which  a  disso- 
lution of  the  marriage  contract,  when  once  executed,  can  be  ol)tained 
in  a  court  of  justice."  Bigelow,  C.  J.,  in  Reynolds  v.  Reynolds,  3  Allen, 
605. 

Upon  the  ground,  then,  that  the  decree  of  the  New  York  court 
attempts  to  annul  a  marriage  contracted  in  Massaciuisetts  between 
Massachusetts  citizens,  and  thus  affect  the  legal  status  of  the  woman 
who  has  remained  domiciled  in  Massachusetts,  and  has  never  been 
within  the  jurisdiction  of  the  New  York  court,  and  deprive  her  of  the 
rights  acquired  bv  her  marriage,  and  especially  ])ecause  it  declares  the 
marriage  void  for  a  reason  on  account  of  which,  by  the  Massachusetts 
law,  it  cannot  be  avoided,  we  are  of  opinion  that  it  should  not  be  en- 
forced here,  and  that  no  principle  of  interstate  comity  requires  that  we 
should  give  it  effect. 

For  these  reasons,  a  majorit}-  of  the  court  are  of  opinion  that  the 
.settlement  acquired  by  Mrs.  Richards  by  her  marriage  continues,  and 
that  judgment  should  be  entered  for  the  defendant. 

Judgment  for  the  defendant} 

1  See  Linke  v.  Van  Acrde,  10  Times  L.  Rep.  426  ;  Roth  v.  Roth,  104  111.  35  ; 
Blumenthal  v.  Tannenholz,  31  N.J.  E(i.  194;  Johnson  v.  Cooke,  [1898]  2  Ir.  130. 
—  Ed. 


30 


4G6  HADDOCK    v.    HADDOCK.  [CHAP.  III. 


HADDOCK   V.  HADDOCK. 

Supreme  Coukt  of  the  United  States.     1906. 

[Reported  201  U.  S.  562.] 

White,  J.  The  plaintiff  in  error  will  be  called  the  husband  and  the 
defendant  in  error  the  wife. 

The  wife,  a  resident  of  the  State  of  New  York,  sued  the  Inisband  in 
that  State  in  1899,  and  there  obtained  personal  service  ui)on  him.  The 
complaint  charged  that  the  parties  had  been  married  in  New  York  in 
1868  where  they  both  resided  and  wliere  the  wife  continued  to  reside, 
and  it  was  averred  that  the  husband,  immediatel}-  following  the  mar- 
riage, abandoned  the  wife,  and  thereafter  failed  to  support  her,  and 
that  he  was  the  owner  of  property.  A  decree  of  sei)aration  from  bed 
and  board  and  for  alimony  was  prayed.  The  answer  admitted  the  mar- 
riage, l)ut  averred  that  its  celebration  was  procured  by  the  fraud  of  the 
wife,  and  that  immediately  after  the  mari'iage  the  parties  had  separated 
by  mutual  consent.  It  was  also  alleged  that  during  the  long  period  be- 
tween the  celebration  and  the  bringing  of  this  action  the  wife  had  in  no 
manner  asserted  her  rights  and  was  barred  by  her  laches  from  doing  so. 
Besides,  the  answer  alleged  that  the  husband  had,  in  1881,  ol)tained  in 
a  court  of  the  State  of  Connecticut  a  divorce  which  was  conclusive. 
At  the  trial  before  a  referee  the  judgment  roll  in  the  suit  for  divorce 
in  Connecticut  was  offered  by  the  husband  and  was  objected  to,  first, 
because  the  Connecticut  court  had  not  obtained  jurisdiction  over  the 
person  of  the  defendant  wife,  as  the  notice  of  the  pendency  of  the  peti- 
tion was  by  publication  and  she  had  not  api)eared  in  the  action  ;  and, 
second,  because  the  ground  upon  which  the  divcjrce  was  granted,  viz., 
desertion  by  the  wife,  was  false.  The  referee  sustained  the  objections 
and  an  exception  was  noted.  The  judgment  roll  in  question  was  then 
marked  for  identification  and  forms  a  i)art  of  the  I'ecord  l)efore  us. 

Having  thus  excluded  the  proceedings  in  the  Connecticut  court,  the 
referee  found  that  the  parties  were  married  in  New  York  in  1868,  that 
the  wife  was  a  resident  of  the  State  of  New  York,  that  after  the  mar- 
riage the  parties  never  lived  together,  and  shortly  thereafter  that  the 
husband  without  justifiable  cause  abandoned  tlie  wife,  and  has  since 
neglected  to  provide  for  her.  The  legal  conclusion  was  that  the  wife 
was  entitled  to  a  separation  from  bed  and  board  and  alimony  in  the  sum 
of  $780  a  year  from  the  date  of  the  judgment.  The  action  of  tlie  ref- 
eree was  sustained  1iy  the  Supreme  Court  of  the  State  of  New  York,  and 
a  judgment  for  separation  and  alimony  was  entered  in  favor  of  the  wife. 
Tins  judgment  was  affirmed  by  the  Court  of  Appeals.  As  by  the  law 
of  the  State  of  New  York,  after  the  affirmance  by  the  Court  of  Ai)peals, 
the  record  was  remitted  to  the  Supreme  Court,  this  writ  of  error  to  that 
court  was  prosecuted. 


SECT.  IV.]  HADDOCK    V.    HADDOCK.  467 

The  Federal  question  is,  Did  the  court  below  violate  the  Constitution 
of  the  United  States  by  refusing  to  give  to  the  decree  of  divorce  ren- 
<lered  in  the  State  of  Connecticut  the  faith  and  credit  to  which  it  was 
entitled  ? 

As  the  averments  concerning  the  alleged  fraud  in  contracting  the 
marriage  and  the  subsequent  laches  of  the  wife  are  solely  matters  of 
State  cognizance,  we  may  not  allow  them  to  even  indirectly  influence 
our  judgment  upon  the  Federal  question  to  which  we  are  confined,  and 
we,  therefore,  put  these  subjects  entireh-  out  of  view.  Moreover,  as, 
for  the  purpose  of  the  Federal  issue,  we  are  concerned  not  with  the 
mere  form  of  proceeding  by  which  the  Federal  right,  if  any,  was  denied, 
but  alone  have  power  to  decide  whether  such  right  was  denied,  we  do 
not  inquire  whether  the  New  York  court  should  preferably  have  admit- 
ted the  record  of  the  Connecticut  divorce  suit,  and,  after  so  admitting 
it,  determine  what  effect  it  would  give  to  it  instead  of  excluding  the 
record  and  thus  refusing  to  give  effect  to  the  judgment.  In  order  to 
decide  whether  the  refusal  of  the  court  to  admit  in  evidence  the  Con- 
necticut decree  denied  to  that  decree  the  efficacy  to  which  it  was  enti- 
tled under  the  full  faith  and  credit  clause,  we  must  first  examine  the 
judgment  roll  of  the  Connecticut  cause  in  order  to  fix  tlie  i)recise  cir- 
cumstances under  which  the  decree  in  that  cause  was  rendered. 

Without  going  into  detail,  it  suffices  to  say  that  on  the  face  of  the 
Connecticut  record  it  appeared  that  the  husband,  alleging  tliat  he  had 
acquired  a  domicil  in  Connecticut,  sued  the  wife  in  that  State  as  a  per- 
son whose  residence  was  unknown,  but  whose  last  known  place  of  resi- 
dence was  in  the  State  of  New  York,  at  a  place  stated,  and  charged 
desertion  by  the  wife  and  fraud  on  her  part  in  procuring  the  marriage  ; 
and,  further,  it  is  shown  that  no  service  was  made  upon  the  wife  except 
liy  publication  and  by  mailing  a  copy  of  tlie  [)etition  to  her  at  her  last 
known  place  of  residence  in  the  State  of  New  York. 

With  the  olject  of  coniining  our  attention  to  the  real  question  arising 
from  this  condition  of  the  Connecticut  record,  we  state  at  the  outset 
certain  legal  pro|j()sitions  irrevocal»ly  concluded  by  previous  decisions 
of  this  court,  and  which  are  required  to  l»e  borne  in  mind  in  analyzing 
the  iillimate  issue  to  l)e  deciiicd. 

First.  The  requirement  of  the  Constitution  is  not  that  some,  but  that 
full  laith  and  ci'edit  shall  be  given  i)v  States  to  the  judicial  decrees  of 
other  States.  That  is  to  say,  where  a  decree  rendeied  in  one  State  is 
embraced  by  the  full  faith  and  credit  clause  tluit  constitutional  provision 
comu)ands  that  the  other  States  shall  give  to  the  decree  llic  force  ami 
effect  to  which  it  was  entitled  in  the  State  where  rendered.  Harding  r. 
Harding,  198  U.  S.  317. 

Second.  Where  a  personal  judgment  has  been  rendered  in  the  couits 
of  a  State  against  a  non-resident  merely  upon  constiuctive  service  and, 
therefore,  without  acquiring  jurisdiction  over  the  person  of  the  defend- 
ant, such  judgment  may  not  be  enforced  in  another  State  in  virtue  of 
he  full   faith   and    credit  clause.       Indeed,    a    personal   judgment    so 


468  HADDOCK  V.    HADDOCK.  [CHAP.  III. 

rendered  is  by  operatiou  of  the  due  process  clause  of  tlie  Fourteenth 
Amendment  void  as  against  the  non-resident,  even  in  the  State  where 
rendered,  and,  therefore,  such  non-resident  in  virtue  of  rights  granted 
by  the  Constitution  of  the  United  States  may  successfully  resist  even  in 
the  State  where  rendered,  the  enforcement  of  such  a  judgment.  Pen- 
noyer  v.  Neif,  95  U.  S.  714.  Tlie  facts  in  that  case  were  these :  Xeff, 
who  was  a  resident  of  a  State  otiier  than  Oregon,  owned  a  tract  of  land 
in  Oregon.  Mitchell,  a  resident  of  Oregon,  brought  a  suit  in  a  court  of 
that  State  upon  a  money  demand  against  Neff.  The  Oregon  statutes 
required,  in  the  case  of  personal  action  against  a  non-resident,  a  publi- 
cation of  notice,  calling  upon  the  defendant  tu  appear  iind  defend,  and 
also  required  the  uiuiHng  to  sueli  defendant  at  his  last  known  place 
of  residence  of  a  cop}'  of  the  sununous  and  couiplaint.  Upon  affidavit 
of  the  absence  of  Neff,  and  that  he  resided  iu  the  State  of  California, 
the  exact  place  being  unknown,  the  publication  required  by  the  statute 
was  ordered  and  made,  and  judgment  by  default  was  entered  against 
Neff.  Upon  this  judgment  execution  was  issued  and  real  estate  of  >s'eff 
was  sold  and  was  ultimately  acquired  by  Pennoyer.  Neff  sued  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Oregon  to  recover 
the  property,  and  the  question  presented  was  the  validity  in  Oregon  of 
the  judgment  there  rendered  against  Neff.  After  the  most  elaborate 
consideration  it  was  expressly  decided  that  the  judgment  rendered  in 
Oregon  under  the  circumstances  stated  was  void  for  want  of  jurisdic- 
tion and  was  repugnant  to  the  due  process  clause  of  the  Constitution  of 
the  United  States.  The  ruling  was  based  on  the  proposition  that  a 
court  of  one  State  could  not  acquire  jurisdiction  to  render  a  personal 
judgment  against  a  non-resident  who  did  not  appear  by  the  mere  publi- 
cation of  a  summons,  and  that  the  want  of  power  to  acquire  such  juris- 
diction by  publication  could  not  be  aided  by  the  fact  that  under  the 
statutes  of  'the  State  in  which  the  suit  against  the  non-resident  was 
brought  the  sending  of  a  copy  of  the  summons  and  complaint  to  the 
post  office  address  in  another  State  of  the  defendant  was  required  and 
complied  with.     The  court  said  (p.  727)  : 

"Process  from  the  tribunals  of  one  State  cannot  run  into  another 
State,  and  summon  parties  there  domiciled  to  leave  its  territory  and 
respond  to  proceedings  against  them.  Publication  of  process  or  notice 
within  the  State  where  the  tribunal  sits  cannot  create  any  greater  obli- 
gation upon  the  non-resident  to  appear.  Process  sent  to  him  out  of  the 
State,  and  process  published  within  it,  are  equallj'  unavailing  in  pro- 
ceedings to  establish  his  personal  liability." 

And  the  doctrine  thus  stated  but  expressed  a  general  principle  ex- 
pounded in  previous  decisions.  Bischoff  r.  Wethered,  9  Wall.  S12.  In 
that  case,  speaking  of  a  money  judgment  recovered  in  the  Common 
Pleas  of  Westminster  Hall,  England,  upon  personal  notice  served  in  the 
city  of  Baltimore,  Mr.  Justice  Bradley,  speaking  for  the  court,  said 
(p.  814)  : 

"It  is  enough  to  say  [of  this  proceeding]  that  it  was  wholly  without 


SECT.  IV.l  HADDOCK  V.    HADDOCK.  469 

jurisdiction  of  the  person,  and  whatever  validity  it  may  have  in  England, 
by  virtue  of  statute  Uiw  against  property  of  the  defendant  there  situate, 
it  can  liave  no  validity  here,  even  of  a  j»'hna  facie  character.     It  is 

simplv  null."  .  . 

Third.  The  principles,  however,  stated  in  the  previous  proposition 
are  controlling  onlv  as  to  judgments  in  personam  and  dp  not  relate  to 
proceedings  in  rem.  That  is  to  say,  in  consequence  of  the  authority 
wliieh  government  possesses  over  things  within  its  borders  there  is  juns- 
dietioirin  a  court  cf  a  State  bv  a  proceeding  in  rem,  after  the  giving  of 
reasonable  opportunity  to  the  owner  to  defend,  to  affect  things  withm 
the  jurisdiction  of  the  court,  even  although  jurisdiction  is  not  directly 
acquired  over  the  person  of  the  owner  of  tlie  thing.     Pennoycr  r.  Netf, 

sujira. 

Fourth.    The  general  rule  stated  in  the  second  proposition  is,  more- 
over, limited  bv  the  inherent  power  which  all  governments  must  possess 
over*  the  marriage  relation,  its  formation  and  dissolution,  as  n-gards 
their  own  citizens.     From  this  exception  it  results  that  where  a  court 
of  one  State,  conformablv  to  the  laws  of  such  State,  or  the  State  through 
its  leo-islative  department,  has  acted  concerning  the  dissolution  ot  the 
marri^acre  tie,  as  to  a  citizen  of  that  State,  such  action  is  binding  in  that 
State  as  to  such    citizen,   and  the  validity  of  the  judgment  may  not 
therein  be  questioned  on  the  ground  that  the  action  of  the  State  in 
dealing  with  its  awn  citizen  concerning  the  marriage  relation  was  re- 
pugnant to  the  due  process  clause  of  the  Constitution.     ^Nla^nard  /•. 
HiU,  125  U.  S.  190.     In  that  case  the  facts  were  tliese  :  Maynard  was 
married  in  Vermont,  and  the  husband  and  wife  removed  to  Ohio,  from 
whence  Mavnard  left  his  wife  and  family  and  went  to  California.     Sub- 
^equentlv  he  acquired  a  domicil  in  the  Territory  of  Washington.     Being 
there  so'domicilcd,  an  act  of  the  legislature  of  the  Territory  was  passed 
granting  a  divorce  to  the  husband.     Maynard  continued  to  reside  m 
Washin'gton,  and  there  remarried  and  died.     The  children  of  the  former 
wife,  claiming  in  right  of  their  mother,  sued  in  a  court  of  the  Territory 
of  Washington  to  recover  real  estate  situated  in  the  Territory,  and  one 
of  the  issues  for  decision  was  the  validity  of  the  legislative  divorce 
granti'd  to  the  father.       The  statute  was  assailed  as  invalid,   on  the 
ground  that  Mis.  Jklaynard  had  no  notice  and  that  she  was  not  a  resi- 
dent of  the  Territory  when  the  act  was  passed.     From  a  decree  of  tlie 
Su[)reme  Court  of  the  Territory  adverse  to  their  claim   the   children 
brought  the  case  to  this  court.     Tiie  power  of  the  territorial  legislature. 
in  the  absence  of  restrictions  in  the  organic  act,  to  grant  a  divorce  to  a 
citizen  of  the  Territory  was,  however,  upheld,  in  view  of  the  nature  and 
extent  of  the  autliority  which  government  possessed  over  the  marriage 
relation.      It  was  therefore  decided  tliat  the  courts  of  the  Territory  com- 
mitted no  error  in  giving  effect  within  the  Territory  to  the  divorce  in 
question.     And  as  a  corollary  of  the  recognized  i)ower  of  a  govern- 
ment thus  to  deal   with  its  own  citizen  liy  a  decree  which   would   l.e 
operative  within  its  own  borders,   irrespective  of  any  extraterritoiial 


470  HADDOCK    V.    HADDOCK.  [CHAP,  III. 

'efficacy,  it  follows  that  the  right  of  another  sovereignty  exists,  under 
principles  of  comity,  to  give  to  a  decree  so  rendered  such  efficacy  as  to 
that  government  may  seem  to  be  justified  by  its  conceptions  of  duty  and 
public  policy. 

Fifth.  It  is  no  longer  open  to  question  that  where  husband  and  wife 
are  domiciled  in  a  State  there  exists  jurisdiction  in  such  State,  for  good 
cause,  to  enter  a  decree  of  divorce  which  will  be  entitled  to  enforcement 
in  another  State  by  virtue  of  the  full  faith  and  credit  clause.  It  has, 
moreover,  been  decided  that  where  a  bona  fide  domicil  has  been  acquired 
in  a  State  by  either  of  the  parties  to  a  marriage,  and  a  suit  is  brought 
by  the  domiciled  party  in  such  State  for  a  divorce,  the  courts  of  that 
State,  if  they  acquire  personal  jurisdiction  also  of  the  other  party,  have 
authority  to  enter  a  decree  of  divorce,  entitled  to  be  enforced  in  every 
State  by  the  full  faith  and  credit  clause.  Cheever  v.  Wilson,  9  Wall. 
108. 

Sixth.  Where  the  domicil  of  matrimony  was  in  a  particular  State,  and 
the  husband  abandons  his  wife  and  goes  into  another  State  in  order  to 
avoid  his  marital  obligations,  such  other  State  to  which  the  husband  has 
wrongfully  fled  does  not,  in  the  nature  of  things,  become  a  new  domicil 
of  matrimony,  and,  therefore,  is  not  to  be  treated  as  the  actual  or  con- 
structive domicil  of  the  wife  ;  hence,  the  place  where  the  wife  was  domi- 
ciled when  so  abandoned  constitutes  her  legal  domicil  until  a  new  actual 
domicil  be  by  her  elsewhere  acquired.  This  was  clearh'  expressed  in 
Barber  v.  Barber,  21  How.  582,  where  it  was  said  (p.  59o)  : 

"The  general  rule  is,  that  a  voluntary  separation  will  not  give  to  the 
wife  a  different  domiciliation  in  law  from  that  of  her  husband.  But  if 
the  husband,  as  is  the  fact  in  this  case,  al)andons  their  domicil  and  his 
wife,  to  get  rid  of  all  those  conjugal  obligations  which  the  marriage  re- 
lation imposes  upon  him,  neither  giving  to  her  the  necessaries  nor  the 
comforts  suitable  to  their  condition  and  his  fortune,  and  relinquishes 
altogether  his  marital  control  and  protection,  he  yields  up  that  power 
and  authority  over  her  which  alone  makes  his  domicil  hers.    ..." 

And  the  same  doctrine  was  ex{)ressly  upheld  in  Cheever  r.  Wilson, 
supra,  where  the  court  said  (9  Wall.  123)  : 

"  It  is  insisted  that  Cheever  never  resided  in  Indiana ;  that  the  dom- 
icil of  the  husband  is  the  wife's,  and  that  she  cannot  have  a  different 
one  from  liis.  The  converse  of  the  latter  proposition  is  so  well  settled 
that  it  would  be  idle  to  discuss  it.  The  rule  is  that  she  may  acquire  a 
separate  domicil  whenever  it  is  necessary  or  proper  that  she  should  do 
so.  The  right  springs  from  the  necessity  of  its  exercise,  and  endures 
as  long  as  the  necessity  continues." 

Seventh.  So  also  it  is  settled  that  where  the  domicil  of  a  husband  is 
in  a  particular  State,  and  that  State  is  also  the  domicil  of  matrimony, 
the  courts  of  such  State  having  jurisdiction  over  the  husband  may,  in 
virtue  of  the  duty  of  the  wife  to  be  at  the  matrimonial  domicil,  disregard 
an  unjustifiable  absence  therefrom,  and  treat  the  wife  as  having  her 
domicil  in  the  State  of  the  matrimonial  domicil  for  the  purpose  of  the 


SECT.  lY.]  HADDOCK    r.    HADDOCK.  471 

dissolution  of  the  marriage,  and  as  a  result  have  power  to  render  a 
judgment  dissolving  the  marriage  which  will  be  binding  upon  both  par- 
ties, and  will  be  entitled  to  recognition  in  all  other  States  by  virtue  of 
the  full  faith  and  credit  clause.      Atherton  r.  Atherton,  181  U.  S.  lo5. 

Coining  to  apply  these  settled  propositions  to  the  case  before  us  three 
things  are  beyond  dispute  :  a.  In  view  of  the  authority  which  govern- 
ment possesses  over  the  marriage  relation,  no  question  can  arise  on  this 
record  concerning  the  right  of  the  State  of  Connecticut  within  its  borders 
to  give  elTect  to  the  decree  of  divorce  rendered  in  favor  of  the  husband 
by  the  courts  of  Connecticut,  he  being  at  the  time  when  the  decree  was 
rendered  domiciled  in  that  State,  b.  As  New  York  was  the  domicil  of 
the  wife  and  the  domicil  of  matrimony,  from  which  the  husband  fled  in 
disregard  of  his  duty,  it  clearly  results  from  the  sixth  proposition  that 
the  domicil  of  the  wife  continued  in  New  York.  c.  As  then  tliere  can  be 
no  question  that  the  wife  was  not  constructivel}'  present  in  Connecticut 
by  virtue  of  a  matrimonial  domicil  in  that  State,  and  was  not  there  indi- 
vidually domiciled  and  did  not  appear  in  the  divorce  cause,  and  was  only 
constructively  served  with  notice  of  the  pendency  of  that  action,  it  is 
apparent  that  the  Connecticut  court  did  not  acquire  jurisdiction  over 
the  wife  within  the  fifth  and  seventh  propositions  ;  that  is,  did  not  ac- 
quire such  jurisdiction  by  virtue  of  the  domicil  of  the  wife  within  the 
State  or  as  the  result  of  personal  service  upon  her  within  its  borders. 

These  subjects  being  thus  eliminated,  the  case  reduces  itself  to  this  : 
Wliether  the  Connecticut  court,  in  virtue  alone  of  the  domicil  of  the  hus- 
band in  that  State,  had  jurisdiction  to  render  a  decree  against  the  wife 
under  the  circumstances  stated,  which  was  entitled  to  be  enforced  in 
other  States  in  and  by  virtue  of  the  full  faith  and  credit  clause  of  the 
Constitution.  In  other  words,  the  final  question  is  whether  to  enforce 
in  another  jurisdiction  the  Connecticut  decree  would  not  be  to  enforce  in 
one  State,  a  personal  judgment  rendered  in  another  State  against  a  de- 
fendant over  whom  the  court  of  the  State  rendering  the  judgment  had 
not  acquired  jurisdiction.  Otherwise  stated,  the  question  is  this:  Is  a 
proceeding  for  divorce  of  such  an  exceptional  character  as  not  to  come 
within  the  rule  limiting  the  authority  of  a  State  to  persons  within  its 
jurisdiction,  but  on  tlie  contrary,  because  of  the  power  which  govern- 
ment may  exercise  over  the  marriage  relation,  constitutes  an  exception 
to  that  rule,  and  is  therefore  embraced,  either  within  the  letter  or  spirit 
of  the  doctrines  stated  in  the  third  and  fourth  pro[)ositioiis? 

Before  reviewing  the  authorities  relied  on  to  esLublish  that  a  divorce 
j)roceeding  is  of  the  exce|)tional  nature  indicated,  we  proi)Ose  first  to 
consider  the  reasons  advanced  to  sustain  th(!  contention.  In  doing  so, 
however,  it  must  always  Ite  borne  in  mind  that  it  is  elementary  that 
where  the  full  failh  and  credit  clause  of  the  Constitution  is  invoked  to 
compel  the  enforcement  in  one  State  of  a  decree  reudercul  in  another, 
the  (juestion  of  the  jurisdiction  of  tiie  court  by  wliich  tlie  dc^cree  was 
rendered  is  open  to  inquiry.  And  if  there  was  no  jniisdiction,  either  of 
the  sul)j('ct  mailer  or  of  the  [x'lson  of  the  dclcndnnt,  liie  coui'ls  of  an- 


472  HADDOCK    V.    HADDOCK.  [CHAP.    III. 

Other  State  are  not  required,  by  virtue  of  the  full  faith  and  credit  clause 
of  the  Constitution,  to  enforce  such  decree.  National  Exchange  Bank 
V.  Wiley,  195  U.  S,  257,  269.  and  cases  cited. 

I.    The  wide  scope  of  the  authority  which  government  possesses  over 
the  contract  of  marriage  and  its  dissolution  is  the  hasis  upon  which  it  is 
aro-ued  that  the  domicil  within  one  State  of  one  party  to  the  marriage 
u-ivcs  to  such  a  State  jurisdiction  to  decree  a  dissolution  of  the  marriage 
tie  which  will  be  obligatory  in  all  the  other  States  l)y  force  of  the  full 
faith  and  credit  clause  of  the  Constitution.      But  the  deduction  is  de- 
structive of  the  premise  upon  which  it  rests.     This  becomes  clear  when 
it  is  perceived  that  if  one  government,  because  of  its  authority  over  its 
own  citizens  has  the  right  to  dissolve  the  marriage  tie  as  to  the  citizen 
(^f  another  jurisdiction,  it  must  follow  that  no  government  possesses  as 
to  its  own  citizens,  power  over  the  marriage  relation  and  its  dissolution. 
For  if  it  be  that  one  government  in  virtue  of  its  authority  over  marriage 
may  dissolve  the  tie  as  to  citizens  of  another  government,  other  govern- 
ments would  have  a  similar  power,  and  hence  the  right  of  every  gov- 
ernment as  to  its  own   citizens  might  be    rendered  nugatory  by  the 
exercise  of  the  power  which  every  other  government  possessed.     To 
concretely  illustrate:   If  the  fact  lie  that  where  persons  are  married  in 
the  State  of  New  York  either  of  the  parties  to  the  marriage  may,  in 
violation  of  the  marital  obligations,. desert  the  other  and  go  into  the 
State  of  Connecticut,  there  acquiring  a  domicil,  and  procure  a  dissolu- 
tion of  the  marriage  which  would  be  binding  in  the  State  of  New  York 
as  to  the  party  to  the  marriage  there  domiciled,  it  would  follow  that  the 
power  of  the  State  of  New  York  as  to  the  dissolution  of  the  marriage  as 
to  its  domiciled  citizen  would  be  of  no  practical  avail.     And  conversely 
the  like  result  would  follow  if  the  marriage  had  been  celebrated  in  Con- 
necticut and  desertion  liad  been    from    that  State  to  New  York,   aud 
consequently  the  decree  of  divorce  had   been  rendered  in  New  York. 
Even  a  superficial  analysis  will  make  this  clear.     Under  the  rule  con- 
.  tended  for  it  would  follow  that  the  States  whose  laws  were  the  most  lax 
as  to  length  of  residence  required  for  domicil,  as  to  causes  for  divorce 
and  to  speed  of  procedure  concerning  divorce,  would  in  effect  dominate 
all  tlie  other  States.      In  other  words,  any  person  who  was  married  in 
one  State  and  who  wislied  to  violate  the  marital  obligations  would  be 
a!)le,  by  following  the  Hues  of  least  resistance,  to  go  into  the  State 
whose  laws  were  the  most  lax,  and  there  avail  of  them  for  the  purpose 
of  the  severance  of  the  marriage  tie  and  the  destruction  of  the  rigiits  of 
the  other  party  to  the  marriage  contract,  to  the  overthrow  of  the  laws 
and  public  policy  of  the  otiier  States.     Thus  the  argument  comes  ueces- 
sarilv  to  this,  that  to  preserve  the  lawful  authority  of  all  the  States  over 
marriage  it  is  essential  to  decide  that  all  the  States  have  such  autiiority 
only  at  the  sufferance  of  the  other  States.     And  the  considerations  just 
stated  serve  to  dispose  of  the  argument  that  the  contention  relied  on 
finds  support  in  the  ruling  made  in  Maynard  v.  Hill,  referred  to  in  the 
fourth  proi)()sition,  whicli  was  at  the  outset  stated.     For  in  that  case 


SECT.  IV.]  HADDOCK   V.    HADDOCK.  473 

the  sole  question  was  the  effect  within  the  Toriitory  of  Washington  of  a 
legislative  divorce  granted  in  the  Teriitoiy  to  a  citizen  thereof.  The 
upholding  of  the  divorce  within  the  Territory  was,  therefore,  but  a  rec- 
ognition of  the  power  of  the  territorial  government,  in  virtue  of  its 
authority  over  marriage,  to  deal  with  a  person  domiciled  within  its 
jurisdiction.  The  case,  therefore,  did  not  concern  the  extraterritorial 
efficac3'  of  the  legislative  divorce.  In  other  words,  whilst  the  ruling 
recognized  the  ample  powers  which  government  possesses  over  mar- 
riage as  to  one  within  its  jurisdiction,  it  did  not  purport  to  hold  that 
such  ample  powers  might  be  exercised  and  enforced  by  virtue  of  the 
Constitution  of  the  United  States  in  another  jurisdiction  as  to  citizens 
of  other  States  to  whom  the  jurisdiction  of  the  Ten-itory  did  not 
extend. 

The  anomalous  result  which  it  is  therefore  apparent  would  arise  from 
maintaining  the  pro[)osition  contended  for  is  made  more  manifest  by 
considering  the  instrument  from  whicli  sut^ii  result  would  be  produced, 
that  is,  the  full  faith  and  credit  clause  of  the  Constitution.  No  or.e 
denies  that  the  States,  at  the  time  of  the  adoption  of  the  Constitution, 
possessed  full  power  over  the  subject  of  marriage  and  divorce.  No 
one,  moreover,  can  deny  that,  prior  to  the  adoption  of  the  Constitution, 
the  extent  to  wliicli  tiie  States  would  recognize  a  divorce  obtained  in  a 
foreign  jurisdiction  depended  upon  their  conceptions  of  duty  and  comity. 
Besides,  it  must  be  conceded  that  the  Constitution  delegated  no  author- 
ity to  the  Government  of  the  United  States  on  the  subject  of  marriage 
and  divorce.  Yet,  if  tlie  pro{)osition  be  maintained,  it  would  follow 
that  the  de^itruelion  of  the  power  of  the  States  over  the  dissolution  of 
marriage,  as  to  their  own  citizens,  would  be  brought  about  b}-  the  oper- 
ation of  the  full  fnith  and  credit  clause  of  the  Constitution.  That  is  to 
say,  it  woidd  come  to  pass  thnt,  although  the  Constitution  of  the  United 
States  does  not  interfere  with  the  authority  of  the  States  over  marriage, 
nevertheless  the  full  faith  and  credit  clause  of  that  instrument  destroyed 
the  authorit}'  of  the  States  over  the  marriage  relation.  And  as  the 
Government  of  the  United  States  has  no  delegated  authority  on  the 
subject,  that  Government  would  be  powerless  to  prevent  the  evil  thus 
brought  about  by  the  full  faith  and  credit  clause.  Thus  neither  the 
States  nor  the  National  Government  would  be  able  to  exert  that  au- 
thority over  the  marriage  tie  possessed  b}-  every  otlier  civilized  gov- 
ernment. Yet,  more  remarkable  would  be  such  result  when  it  is  l)orne 
in  mind  that,  when  the  Constitution  was  adopted,  nowhere,  either  in 
the  mother  country  or  on  the  continent  of  Europe,  either  in  adjudged 
cases  or  in  the  treatises  of  authoritative  writers,  had  the  theory  ever 
been  upheld  or  been  taught  or  even  suggested  that  one  government, 
solely  because  of  the  domicil  within  its  borders  of  one  of  the  parties  to 
a  marriage,  had  authority,  without  tiie  actual  or  constructive  presence 
of  the  other,  to  exert  its  authoiity  by  a  dissolution  of  the  marriage  tie, 
which  exertion  of  power  it  would  be  tlie  duty  of  other  States  to  respect 
as  to  those  subject  to  their  jurisdiction. 


474  HADDOCK    V.    HADDOCK.  [CHAP.  III. 

II,  It  is  urged  that  the  suit  for  divorce  was  a  proceeding  In  rem,  and, 
therefore,  the  Connecticut  court  had  com[)lete  jurisdiction  to  enter  a 
decree  as  to  the  res,  entitled  to  be  enforced  in  the  State  of  New  Yorlv. 
But  here  again  the  argument  is  contradictory.  It  rests  upon  the  tneory 
that  jurisdiction  in  Connecticut  depended  upon  the  domicil  of  the  person 
there  suing  and  yet  attributes  to  the  decree  resting  upon  the  domicil  of 
one  of  tlie  parties  alone  a  force  and  effect  based  upon  the  tlieory  that  a 
thing  within  the  jurisdiction  of  Connecticut  was  the  subject  matter  of 
the  controvers}-.  But  putting  this  contradiction  aside,  what,  may  we 
ask,  was  the  res  in  Connecticut?  Certainly  it  cannot  in  reason  be  said 
that  it  was  the  cause  of  action  or  the  mere  presence  of  the  person  of  the 
plaintiff  within  the  jurisdiction.  The  only  possible  theory  then  u[)on 
which  the  pro[)osition  proceeds  must  be  that  the  res  in  Connecticut, 
from  which  the  jurisdiction  is  assumed  to  have  arisen,  was  the  man-iage 
relation.  But  as  the  marriage  was  celebrated  in  New  York  between 
citizens  of  that  State,  it  must  be  admitted,  under  the  hypothesis  stated, 
that  liefore  the  husband  deserted  the  wife  in  New  York,  the  res  was  in 
New  York  and  not  in  Connecticut.  As  the  husband,  after  wrongfully 
abandoning  the  wife  in  New  York,  never  established  a  matrimonial 
domicil  in  Connecticut,  it  cannot  be  said  that  he  took  with  him  tiie 
marital  relation  from  which  he  fled  to  Connecticut.  Conceding,  how- 
ever, that  he  took  with  him  to  Connecticut  so  much  of  the  marital  rela- 
tion as  concerned  his  individual  status,  it  cannot  in  i-eason  be  said  tiiat 
he  did  not  leave  in  New  York  so  much  of  the  relation  as  pertained  to 
the  status  of  the  wife.  From  any  point  of  view,  then,  under  the  propo- 
sition referred  to,  if  tlie  marriage  relation  be  treated  as  the  res,  it  follows 
that  it  was  divisible,  and  thei'efore  there  was  a  res  in  the  vState  of  New 
York  and  one  in  the  State  of  Connecticut.  Thus  considered,  it  is  clear 
that  the  power  of  one  State  did  not  extend  to  affecting  the  thing  sitiuited 
in  another  State.  As  illustrating  this  conception,  we  notice  the  case 
of  Mississippi  &  Missouri  R.  R.  Co.  v.  Ward,  2  Black,  485.  Tlie  facts 
in  that  case  were  these  :  A  bill  was  filed  in  a  District  Court  of  the 
United  States  for  the  District  of  Iowa  to  abate  a  nuisance  alleged  to 
have  been  occasioned  by  a  bi-idge  across  the  Mississippi  River  dividing 
the  States  of  Illinois  and  Iowa.  Under  the  assnm[)tion  that  the  nuisance 
was  occasioned  by  the  operation  of  the  bridge  on  the  Blinois  side,  the 
court,  after  pointing  out  that  the  United  States  Circuit  Court  for  the  Dis- 
trict of  Iowa  exercised  the  same  jurisdiction  that  a  State  court  of  Iowa 
could  exercise  and  no  more,  said  (p.  494  ) : 

"  The  District  Court  had  no  power  ovei-  the  local  ol>ject  inflicting  the 
injury  ;  nor  any  jurisdiction  to  inquire  of  the  facts,  whether  damage  had 
been  sustained,  or  how  much.  These  facts  are  beyond  the  court's  juris- 
diction and  powers  of  inquir\',  and  outside  of  the  case." 

Nor  has  the  conclusive  force  of  the  view  which  we  have  stated  been 
met  by  the  suggestion  that  the  res  was  indivisible,  and  therefore  was 
wholly  in  Connecticut  and  wholly  in  New  York,  for  this  amounts  but 
to  saviuii;  that  the  same  thing  can  be  at  one  and  the  same  time  in  differ- 


SECT.  IV.]  HADDOCK    V.    HADDOCK.  475 

ent  places.  Further,  the  reasoning  above  expressed  disposes  of  the 
contention  that,  as  the  suit  in  Connecticut  involved  the  status  of  the 
husband,  therefore  the  courts  of  that  State  had  the  power  to  determine 
the  status  of  the  non-resident  wife  by  a  decree  which  had  obligators- 
force  outside  of  the  State  of  Connecticut.  Here,  again,  the  argument 
comes  to  this,  that,  because  the  State  of  Connecticut  had  jurisdiction 
to  fix  the  status  of  one  domiciled  within  its  borders,  that  State  also  had 
the  authority  to  oust  the  State  of  New  York  of  the  power  to  fix  tlie 
status  of  a  person  who  was  undeniably  subject  to  the  jurisdi-jtion  of  that 
State. 

III.  It  is  urged  that  whilst  marriage  is  in  one  aspect  a  contract,  it  is 
nevertheless  a  contract  in  which  society  is  deeply  interested,  and,  there- 
fore, government  must  have  the  power  to  determine  whether  a  marriage 
exists  or  to  dissolve  it,  and  hence  the  Connecticut  court  had  jurisdiction 
of  the  relation  and  the  right  to  dissolve  it,  not  only  as  to  its  own  t-itizen 
but  as  to  a  citizen  of  New  York  who  was  not  subject  to  the  jurisdiction 
of  the  State  of  Connecticut.  The  proposition  involves  in  another  form 
of  statement  the  u<ni  si-quifin-  which  we  have  previously  [pointed  out; 
that  is,  that,  because  government  possesses  power  over  marriage,  there- 
fore the  existence  of  that  power  must  be  rendered  unavailing. 

Nor  is  the  contention  aided  by  the  proposition  that  because  it  is  im- 
possible to  conceive  of  the  dissolution  of  tlie  marriage  as  to  one  of  tiie 
parties  in  one  jurisdiction  without  at  the  same  time  saying  that  the  mar- 
riage is  dissolved  as  to  both  in  eveiy  other  jurisdiction,  therefore  tiie 
Connecticut  decree  should  have  ol)ligatory  effect  in  New  York  as  to  the 
citizen  of  tliat  State,  For,  again,  by  a  change  of  form  of  statement, 
the  same  contention  which  wc  have  disposed  of  is  reiterated.  Besides, 
the  pro{)osition  presupposes  that,  because  in  the  exercise  of  its  jiower 
over  its  own  citizens,  a  State  may  determine  to  dissolve  the  marriage 
tie  by  a  decree  wiiich  is  eflHcacious  within  its  borders,  therefore  such 
decree  is  in  all  cases  binding  in  every  other  jurisdiction.  As  we  have 
pointed  out  at  the  outset,  it  does  not  follow  that  a  State  may  not  exert 
its  power  as  to  one  within  its  jurisdiction  simply  because  such  exercise 
of  authority  may  not  be  extended  beyond  its  borders  into  the  jurisdiction 
and  authority  of  another  State.  The  distinction  was  clearly  pointed 
out  in  Blackinton  r,  Blackinton,  141  Mass.  432.  In  that  case  the  par- 
ties were  married  and  lived  in  INIassachusetts.  The  husband  abandoned 
tlie  wife  witliout  cause  and  l)ecame  domiciled  in  New  York.  The  wife 
remained  at  the  matrimonial  domicil  in  Massachusetts  and  instituted  a 
proceeding  to  prohibit  her  husband  from  imposing  any  restraint  upon 
her  personal  liberty  and  for  separate  n)aintenance.  Service  was  made 
upon  the  husbatid  in  New  York.  Tlie  court,  recognizing  fully  tha' 
under  the  cir(;uinstances  disclosed  the  domicil  of  tlu;  husband  was  no 
the  domicil  of  the  wife,  concluded  tiiat,  innler  tiie  statutes  of  Massa- 
chusetts, it  had  authority  to  grant  tiie  relief  prayed,  and  was  the:, 
brought  to  determine  whether  the  decree  ought  to  be  made,  in  view  Ol 
tlie  fact  that  such  decree  might  not  have  extraterritorial  force.     But 


47ti  HADDOCK   V.    HADDOCK.  [CHAP.  III. 

this  circumstance  was  bold  not  to  be  controlling  and  the  decree  was 
awarded.  The  same  doctrine  was  clearly  exi)Oiinded  by  the  Privy 
Council,  in  an  opinion  delivered  l»y  Lord  Watson,  in  the  divorce  case 
of  Le  Mesurier  c.  Le  Mesurier  (l'895),  A.  C.  517,  where  it  was  said 
(p.   527): 

''When  the  jurisdiction  of  the  court  is  exercised  according  to  the 
rules  of  international  law,  as  in  the  case  where  the  parties  have  their 
domicil  within  its  forum,  its  decree  dissolving  their  marriage  ouglit  to 
be  respected  by  the  tribunals  of  every  civilized  country.  ...  On  the 
other  hand,  a  decree  of  divorce  a  vinculo,  pronounced  by  a  court  whose 
jurisdiction  is  solely  derived  from  some  rule  of  municipal  law  peculiar 
to  its  forum,  cannot,  when  it  trenches  upon  the  interests  of  any  other 
countrv  to  whose  tribunals  the  spouses  were  amenable,  claim  extraterri- 
torial anthoiit\"." 

IV.    Tlie  contention  that  if  tlie  power  of  one  State  to  decree  a  disso- 
lution of  a  marriage  which  would  be  compulsory  upon  the  other  States 
be  limited  to  cases  where  lioth  parties  are  subject  to  the  jin-isdiction, 
the  right  to  obtain  a  divorce  could  be  so  hampered  and  restricted  as  to 
be  in  effect  impossible  of  exercise,  is  but  to  insist  that  in  order  to  favor 
the  dissolution  of  marriage  and  to  cause  its  permanency  to  depend  upon 
the  mere  caprice  or  wrong  of  the  parties,  there  should  not  be  applied 
to  the  right  to  obtain  a  divorce  those  fundanK.'utal  principles  which  safe- 
guard the  exercise  of  the  simplest  rights.      In  other  words,  tlie  argument 
but  reproduces  the  fallacy  already  exposed,  which  is,  that  one  State 
must  be  endowed  with  the  attribute  of  destroying  the  autliority  of  all 
the  others  concerning  the  dissolution  of  marriage  in  order  to  render  such 
dissolution  easy  of  procurement.     But  even  if  the  true  and  controlling 
principles  be  for  a  moment  put  aside  and  mere  considerations  of  incon- 
venience be  looked  at,  it  would  follow  that  tlie  preponderance  of  incon- 
venience would  be  against  the  contention  that  a  State  should  have  the 
power  to  exert  its  authority  concerning  the  dissolution  of  marriage  as 
to  those  not  amenable  to  its  jurisdiction.     By  the  ap[)lication  of  that 
rule  each  State  is  given  the  power  of  overshadowing  the  authority  of  all 
the  other  States,  tlius  causing  the  marriage  tie  to  be  less  protected  than 
any  other  civil  obligation,  and  this  to  be  accomplished  by  destroying 
individual  rights  without  a  hearing  and  by  tribunals  having  no  jurisdic- 
tion.    Further,  the  admission  that  jurisdiction  in  the  courts  of  one  State 
over  one  party  alone  was  the  test  of  the  right  to  dissolve  the  marriage 
tie  as  to  the  other  party  although  domiciled  in  another  State,  would  at 
once  render  such  test  impossible  of  general  apphcation.     In  other  words, 
the  test,  if  admitted,  would  destroy  itself.     Tliis  follows,  since  if  that 
test  were  the  rule,  each  party  to  the  marriage  in  one  State  would  have 
a  right  to  acquire  a  domicil  in  a  different  State  and  tliere  institute  pro- 
ceedings for  divorce.      It  would  hence  necessarily  arise  that  domicil 
would  be  no  longer  the  determinative  criterion,  but  the  mere  race  of 
diligence  between  the  parties  in  seeking  different  forums  in  other  States 
or  the  celerity  by  which  in  such  States  judgments  of  divorce  might  be 


SECT.  IV.]  HADDOCK   V.    HADDOCK.  477 

procured  would  have  to  be  considered  in  order  to  decide  which  forum 
was  controlling. 

On  the  otlier  liand,  the  denial  of  the  power  to  enforce  in  another  State 
a  decree  of  divorce  rendered  against  a  person  who  was  not  subject  to 
the  jurisdiction  of  the  State  in  which  tlie  decree  was  rendered  obviates 
all  the  contradictions  and  inconveniences  which  are  above  indicated.  It 
leaves  uncurtailed  the  legitimate  power  of  all  the  States  over  a  subject 
peculiarly  within  their  authority,  and  thus  not  only  enables  ttiem  to 
maintain  their  public  policy  but  also  to  protect  the  individual  rights  of 
their  citizens.  It  does  not  deprive  a  State  of  the  power  to  render  a  de- 
cree of  divorce  susceptible  of  l>eing  enforced  within  its  borders  as  to  the 
jierson  within  the  jurisdiction,  and  does  not  debar  other  States  from  giv- 
ing such  effect  to  a  judgment  of  that  character  as  they  may  elect  to  do 
under  mere  principles  of  State  comity.  It  causes  the  full  faith  and 
credit  clause  of  the  Constitution  to  operate  upon  decrees  of  divorce  in 
the  respective  States  just  as  that  clause  operates  upon  other  i-ights.  that 
is.  it  compels  all  the  States  to  recognize  and  enforce  a  judgment  of 
divorce  rendered  in  other  States  where  both  parties  were  subject  to  the 
jurisdiction  of  the  State  in  wliich  the  decree  was  rendered,  and  it  en- 
ables the  States  rendering  such  decrees  to  take  into  view  for  the  purpose 
of  the  exercise  of  their  authority  the  existence  of  a  matrimonial  domicil 
from  which  the  presence  of  a  party  not  pliysically  present  within  the 
borders  of  a  State  may  be  constructively  found  to  exist. 

Having  thus  disi)osed  of  the  leasouing  advanced  to  sustain  the  asser- 
tion that  the  courts  of  the  State  of  New  York  were  bound  by  the  full 
faith  and  credit  clause  to  give  full  effect  to  the  ConncclicMit  dcci-ce.  we 
are  l)rouglit  to  c  )nsider  the  authorities  relied  upon  to  sii|)port  that 
proposition. 

Whilst  the  continental  and  English  authorities  are  not  alluded  to  in 
the  argument,  it  may  l»e  well,  in  the  most  summary  way.  to  refer  to 
them  as  a  means  of  illustrating  the  question  for  consideration.  The 
extent  of  the  power  which  independent  sovereignties  exercised  over  the 
dissolution  of  the  marriage  tie,  as  to  their  own  citizens,  gave  rise,  in  the 
nature  of  things,  to  controversies  conceining  the  extraterritorial  effect 
to  be  given  to  a  dissolution  of  such  tie  when  made  between  citizens  of 
one  country  by  judicial  tribunals  of  another  country  in  which  such  citi- 
zens had  become  domiciled.  We  do  not  deem  it  essential,  however, 
to  consider  the  conHicliug  theoi'ies  and  divergent  rules  of  public  policy 
which  were  thus  engendered.  We  are  relieved  of  the  necessity  of  enter- 
in"f  upon  sucii  ati  imiuiry,  since  it  cannot  be  doulttcd  that  ncilher  tlie 
practice  nor  the  theories  controlling  in  the  countries  on  llic  conlinent 
li'ud  the  slightest  saiu;tion  to  the  contention  that  a  government,  simply 
because  one  of  the  parties  to  a  marriage  was  domiciled  within  its  bor- 
ders, where  no  matrimonial  domicil  ever  existed,  liad  power  tf)  render  a 
decree  dissolving  a  marriage  which  on  principles  of  international  law 
was  entitled  to  obligatory  extraterritorial  cliect  as  to  the  other  party  to 
the  mariiage,  a  cntizen  of  anotiier  coinitry.  Wharto"  '^onf.  Laws,  3d 
ed.,  V.  1,  p.  441,  §  20'.)  :uid  iiotis 


478  HADDOCK   V.    HADDOCK.  [CHAP.  III. 

It  cannot  be  doubted,  also,  that  the  courts  of  England  decline  to  treat 
a  foreign  decree  of  divorce  as  liaving  obligatory  extraterritorial  force 
when  both  parties  to  the  marriage  were  not  subject  to  the  jurisdiction 
of  the  court  which  rendered  the  decree.  Shaw  r.  Gould,  L.  R.  3  M.  L. 
55  ;  Harvey  '•.  Farnie,  8  App.  Cas.  43.  And,  although  it  has  been  sug- 
o-ested  in  opinions  of  English  judges  treating  of  divorce  questions  that 
exceptional  occasions  miglit  arise  wliicli  perhaps  would  justify  a  relax- 
ation of  the  rigor  of  the  presumption  that  tlie  domicil  of  the  husband 
was  the  domicil  of  the  wife,  per  Lords  Eldon  and  Redesdale,  in  Tovi-y 
V.  Lindsay,  1  Dow.  133,  140;  per  Lord  Westbury,  in  Pitt  ??.  Pitt,  4 
Macq.  627.  640  ;  per  Brett,  L.  J.,  in  Niboyet  v.  Niboyet,  4  P.  D.  1,  14  ; 
Briggs  i\  Briggs,  5  P.  D.  163,  165  ;  and  per  Jaraes  and  Cotton,  L.  JJ., 
in  Harvey  v.  Farnie,  6  P.  D.  47,  49,  the  courts  of  England,  in  cases 
where  the  jurisdiction  was  dependent  upon  domicil,  liave  enforced  the 
presumption  and  treated  the  wife  as  being  witliin  the  jurisdiction  wliore 
the  husband  was  legally  domiciled.  But  this  conception  was  not  a  de- 
parture from  the  principle  uniforml}-  maintained,  that,  internationally 
considered,  jurisdiction  over  both  parties  to  a  marriage  was  essential  to 
the  exercise  of  power  to  decree  a  divorce,  but  was  simply  a  means  of 
determining  by  a  legal  presumption  wliether  both  parties  were  within 
the  jurisdiction.  Of  course  the  rigor  of  the  EngHsh  rule  as  to  the  dom- 
icil of  the  husband  being  the  domicil  of  the  wife  is  not  controlling  in 
this  court,  in  view  of  the  decisions  to  wliicli  we  have  previously  referred, 
recognizing  the  right  of  the  wife,  for  tlie  fault  of  the  husband,  to  acquire 
a  separate  domicil.  Barber  v.  Barber,  21  How.  582;  Cheever  y.  Wil- 
son,9  AVall.  108;   Atherton  /•.  Atherton,  181  U.  S.  155. 

And  even  in  Scotland,  where  residence,  as  distinguished  from  domicil, 
was  deemed  to  authorize  the  exercise  of  jurisdiction  to  grant  divorces, 
it  was  invariably  recognized  that  the  presence  within  the  jurisdiction  of 
both  parties  to  the  marriage  was  essential  to  authorize  a  decree  in  favor 
of  the  complainant.  Wharton,  Conf.  Laws,  §215,  v.  1,  p.  447;  per 
Lord  Westbury,  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  88. 

As  res|)ects  the  decisions  of  this  court.  We  at  once  treat  as  inapi)o- 
site,  and  therefore  unnecessary  to  be  here  specially  reviewed,  those  hold- 
ing, a,  that  where  the  domicil  of  a  plaintiff  in  a  divorce  cause  is  in  the 
State  where  the  suit  was  brought,  and  the  defendant  appears  and  de- 
fends, as  both  parties  are  before  the  court,  there  is  power  to  render 
a  decree  of  divorce  which  will  be  entitled  in  other  States  to  recognition 
under  the  full  faith  and  credit  clause  (Cheever  v.  Wilson,  fiupni)  ;  b,  that, 
as  distinguished  from  legal  domicil,  mere  residence  within  a  particular 
State  of  the  plaintiff  in  a  divorce  cause  brought  in  a  court  of  such  State 
is  not  sufficient  to  confer  jurisdiction  upon  such  court  to  dissolve  the 
marriage  relation  existing  between  the  plaintiff  and  a  non-resident  de- 
fendant. Andrews  v.  Andrews,  188  U.  S.  14  :  Streitwolf  v.  Strcitwolf, 
181  U.  S.  179  ;  Bell  r.  Bell,  181  U.  S.  175.  This  brings  us  to  again 
consider  a  case  heretofore  referred  to,  principally  relied  upon  as  sus- 
taining the  contention  that  the  domicil  of  one  party  alone  is  sutiicient 


SECT.  IV.]  HADDOCK  V.    HADDOCK.  479 

to  confer  jurisdiction  upon  a  judicial  tribunal  to  render  a  decree  of 
divorce  ha\ing  extraterritorial  effect,  viz.,  Atberton  r.  Atherton,  181 
U.  S.  155.  The  decision  in  tliat  case,  however,  as  we  have  previously 
said,  was  expressly  placed  upon  the  ground  of  matrimonial  domicil. 
This  is  apparent  from  the  following  passage,  which  we  excerpt  from  the 
opinion,  at  page  171  : 

"This  case  does  not  involve  the  validity  of  a  divorce  granted,  on 
constructive  service,  by  the  court  of  a  State  in  whicii  only  one  of  the 
parties  ever  had  a  domicil ;  nor  the  question  to  wliut  extent  the  good 
faith  of  the  domicil  ma}'  be  afterwards  iiuiuired  into.  In  tliis  case  the 
divorce  in  Kentuck}-  was  by  the  court  of  the  State  wliich  had  always 
been  the  undoubted  domicil  of  tlie  husband,  and  which  was  the  only 
matrimonial  domicil  of  the  husband  and  wife.  The  single  question  to 
be  decided  is  the  validity  of  that  divorce,  granted  after  such  uulice  had 
been  given  as  was  required  by  the  statutes  of  Kentucky." 

The  contention,  therefore,  that  the  reasoning  nf  the  opinion  demon- 
strates that  the  domicil  of  one  of  the  parties  alone  was  contemplated  as 
being  sufficient  to  found  jurisdiction,  but  insists  that  tlie  case  decided  a 
proposition  which  was  excluded  in  unmistakable  language.  But,  more- 
over, it  is  clear,  when  the  facts  which  were  involved  in  the  Atherton 
case  are  taken  into  view,  that  the  case  could  not  have  been  decided 
merely  upon  the  ground  of  tlie  domicil  of  one  of  the  parties,  because 
tliat  consideration  alone  would  have  afforded  no  solution  of  the  problem 
which  the  case  presented.  The  salient  facts  were  tliese  :  The  husband 
lived  in  Kentucky,  married  a  citizen  of  New  York,  and  the  married 
couple  took  up  their  domicil  at  the  home  of  the  husband  in  Kentucky, 
where  tliey  continued  to  reside  and  where  children  were  born  to  them. 
Tlie  wife  left  the  matrimonial  domicil  and  went  to  New  York.  The 
husband  sued  her  in  Kentucky  for  a  divorce.  Before  the  Kentucky  suit 
merged  into  a  decree  the  wife,  having  a  residence  in  New  York  sufficient, 
under  ordinaiT  circumstances,  to  constitute  a  domicil  in  that  State,  sued 
the  husband  in  the  courts  of  New  York  for  a  limited  divorce.  Tlius  the 
two  suits,  one  by  the  husband  against  the  wife  and  the  other  bv  the  wife 
against  the  husband,  were  pending  in  the  respective  States  at  the  same 
time.  The  husband  obtained  a  decree  in  the  Kentucky  suit  before  the 
suit  of  the  wife  had  been  determined,  and  pleaded  such  decree  in  the  suit 
brought  by  the  wife  in  New  York.  The  New  York  court,  however,  re- 
fused to  recognize  the  Kentucky  decree  and  the  case  came  here,  and  tliis 
court  decided  that  the  courts  of  New  York  were  bound  to  give  effect  to 
the  Kentucky  decree  by  virtue  of  the  full  faith  and  credit  clause.  Under 
these  conditions  it  is  clear  that  the  case  could  not  have  been  disposed 
of  on  the  mere  ground  of  the  individual  domicil  of  the  parties,  since 
upon  that  hypotiiesis,  even  if  the  e(lica(;3'  of  the  individual  domicil  had 
been  admitted,  no  solution  would  have  been  thereby  atforded  of  the 
problem  which  would  have  arisen  for  decision,  that  |)roblem  being  which 
of  the  two  courts  wherein  the  conflicting  proceedings  were  pending  hail 
hac.  the  paramount  right  to  enter  a  binding  decree.     Having  disposed 


480  HADDOCK    V.   HADDOCK.  [CHAF.  III. 

of  the  case  upon  the  principle  of  matrimonial  domicil,  it  cannot  in  reason 
be  conceived  that  the  court  intended  to  express  an  opinion  upon  t'e 
soundness  of  the  theory  of  individual  and  separate  domicil  which,  iso- 
latedly  considered,  was  inadequate  to  dispose  of,  and  was,  therefore, 
irrelevant  to,  the  question  for  decision.   .   .  .^ 

Without  questioning  the  power  of  the  State  of  Connecticut  to  enforce 
within  its  own  borders  the  decree  of  divorce  which  is  here  in  issue,  an<l 
without  intimating  a  doubt  as  to  the  power  of  the  State  of  New  York  to 
give  to  a  decree  of  that  character  rendeied  in  Connecticut,  witliin  the 
borders  of  the  State  of  New  York  and  as  to  its  own  citizens,  such  effi- 
cacy as  it  may  be  entitled  to  in  view  of  the  public  policy  of  that  State, 
we  hold  that  the  decree  of  the  court  of  Connecticut  rendered  under  the 
circumstances  stated  was  not  entitled  to  obligatory  enforcement  in  the 
State  of  New  York  by  virtue  of  the  full  faith  and  credit  clause,  it 
therefore  follows  that  the  court  below  did  not  violate  the  full  faith  and 
credit  clause  of  the  Constitution  in  refusing  to  admit  the  Connecticut 
decree  in  evidence;  and  its  judgment  is,  therefore, 

Affii'ined. 

Holmes,  J.,  with  whom  concurred  Harlan,  Brewer,  and  Browx,  JJ., 
dissenting." 

I  do  not  suppose  that  civilization  will  come  to  an  end  whichever  way 
this  case  is  decided.  But  as  the  reasoning  which  prevails  in  the  mind 
of  the  majority  does  not  convince  me,  and  as  I  think  that  the  decision 
not  only  reverses  a  previous  well-considered  decision  of  this  court  but 
is  likely  to  cause  considerable  disaster  to  innocent  persons  and  to  bas- 
tardize'children  hitherto  supposed  lo  be  the  olfspring  of  lawful  marriage, 
I  think  it  proper  to  express  my  views.  Generally  stated,  the  issue  is 
whether,  when  a  husband  sues  in  the  court  of  his  domicil  for  divorce 
IVom  an  absent  wife  on  the  ground  of  her  desertion,  the  jurisdiction  of 
the  court,  if  there  is  no  personal  service,  depends  upon  the  merits  of  the 
case.  If  the  wife  did  desert  her  husband  in  fact,  or  if  she  was  served 
with  process,  1  understand  it  not  to  be  disputed  that  a  decree  of  divorce 
in  the  case  supposed  would  be  conclusive,  and  so  I  understand  it  to  lie 
admitted  that  if  the  court  of  another  State  on  a  retrial  of  the  merits 
finds  them  to  iiave  been  decided  rightly  its  duty  will  be  to  declare  the 
decree  a  bar  to  its  inquiry.  The  first  form  of  the  question  is  whether  it 
has  a  right  to  inquire  into  the  merits  at  all.  But  I  think  tliat  it  will 
appear  directly  that  the  issue  is  narrower  even  than  that. 

In  Atherton  v.  Atherton,  181  U.  S.  155,  a  divorce  was  granted  on 
the  ground  of  desertion,  to  a  husband  in  Kentucky  against  a  wife  who 
had  "established  herself  in  New  York.  She  did  not  appear  in  the  suit 
and  the  only  notice  to  her  was  by  mail.     Before  the  decree  was  made 

1  The  learned  judge  here  examined  immerous  decisions  of  State  courts,  and  con- 
cluded that  they  did  not  establish  tlie  proposition  that  such  a  decree  as  the  one  here 
examined  was  entitled  to  full  faith  and  credit.  —  Kn. 

■2  Another  dissenting  opinion  of  Bkowx,  J.,  is  omitted  —Ed. 


SECT.  IV 


HADDOCK    V.    HADDOCK.  481 


she  sued  in  New  York  for  a  divorce  from  bed  and  board,  but  pending 
the  latter  proceedings  the  Kentucky  suit  was  brought  to  its  end.  The 
husband  appeared  in  New  York  and  set  up  the  Kentucky  decree.  The 
New  York  court  found  that  the  wife  left  her  liusband  because  of  his 
cruel  and  abusive  treatment,  without  fault  on  her  part,  held  that  the 
Kentucky  decree  was  no  bar,  and  granted  the  wife  her  divorce  from  bed 
and  board.  The  New  York  decree,  after  being  affirmed  by  the  Court 
of  Ai)peals,  was  reversed  by  this  court  on  the  ground  that  it  did  not 
give  to  the  Kentucky  decree  the  faith  and  credit  which  it  had  by  law  in 
Kentucky.  Of  course,  if  the  wife  loft  her  husband  because  of  his  cruelty 
and  without  fault  on  her  part,  as  found  by  the  New  York  court,  she  was 
not  guilty  of  desertion.  Yet  this  court  held  that  the  question  of  her 
desertion  was  not  open  but  was  conclusively  settled  by  the  Kentucky- 
decree. 

There  is  no  difference,  so  far  as  I  can  see,  between  Atherton  v.  Ath- 
erton  and  the  present  case,  except  that  in  Atherton  v.  Atherton  the 
forum  of  the  first  decree  was  that  of  the  matrimonial  domicil,  whereas 
in  this  the  court  was  that  of  a  domicil  afterwards  acquired.  After  that 
decision  any  general  objection  to  the  effect  of  the  Connecticut  decree 
on  the  ground  of  the  wife's  absence  from  the  State  comes  too  late.  So 
does  any  general  objection  on  the  ground  that  to  give  it  effect  invites  a 
race  of  diligence.  I  therefore  pass  such  arguments  without  discussion, 
although  they  seem  to  me  easy  to  answer.  Moreover,  Atherton  r. 
Atherton  decides  that  the  jurisdiction  of  the  matrimonial  domicil,  at 
least,  to  grant  a  divorce  for  the  wife's  desertion  without  personal  ser- 
vice, does  not  depend  upon  the  fact  of  her  desertion,  but  continues  even 
if  her  husband's  cruelty  has  driven  her  out  of  the  State  and  she  has  ac- 
quired a  separate  domicil  elsewhere  upon  the  principles  which  we  all 
agree  are  recognized  by  this  court. 

I  can  see  no  ground  for  giving  a  less  effect  to  the  decree  when  the 
husljand  changes  his  domicil  after  the  separation  has  taken  place.  The 
question  whether  such  a  decree  should  have  a  less  effect  is  the  only 
question  open,  and  the  issue  is  narrowed  to  that.  No  one  denies  that 
the  husband  may  sue  for  divorce  in  his  new  domicil,  or,  as  I  have  said, 
that  if  he  gets  a  decree  when  he  really  has  been  deserted,  it  will  be 
binding  everywhere.  Hawkins  v.  Ragsdale,  80  Ky.  353,  cited  181  U.  S. 
162  ;  Cheely  v.  Clayton,  110  U.  S.  701,  705.  It  is  unnecessary  to  add 
more  cases.  The  only  reason  which  I  have  heard  suggested  for  holding 
the  decree  not  binding  as  to  the  fact  that  he  was  deserted,  is  that  if  he 
is  deserted  his  power  over  the  matrimonial  domicil  remains  so  that  the 
domicil  of  the  wife  accompanies  him  wlierever  he  goes,  whereas  if  he  is 
'she  deserter  he  has  no  such  power.  Of  course  this  is  a  pure  fiction,  and 
fiction  always  is  a  poor  ground  for  changing  substantial  rights.  It 
seems  to  me  also  an  inadecjuate  fiction,  since  by  the  same  principle,  if 
he  deserts  her  in  the  matrimonial  domicil,  he  is  (Hjually  powerless  to 
keep  her  domicil  there,  if  she  ujovcs  into  anotlicr  State.  The  ti-uth  is 
that  jurisdiction  no  more  (U'|)ends  iiimn  both  [larties  having  their  domicil 


482  HADDOCK   V.    HADDOCK.  [CHAP.  IIL 

within  the  State,  than  it  does  upon  the  presence  of  the  defendant  there, 
as  is  shown  not  only  by  Atherton  v.  Atherton,  but  by  the  rights  of  the 
wife  in  the  matrimonial  domicil  when  the  husband  deserts. 

There  is  no  question  that  a  husband  may  estabUsh  a  new  domicil  for 
himself,  even  if  he  has  deserted  his  wife.  Yet  in  these  days  of  equality 
I  do  not  suppose  that  it  would  be  doubted  that  the  jurisdiction  of  the 
court  of  the  matrimonial  domicil  to  grant  a  divorce  for  the  desertion 
remained  for  her,  as  it  would  for  him  in  the  converse  case.  See  Cheever 
V.  Wilson,  9  \^ll.  108.  Indeed,  in  Ditson  v.  Ditson,  4  R,  I.  87,  which, 
after  a  quotation  of  Judge  Cooley's  praise  of  it,  is  stated  and  relied 
upon  as  one  of  the  pillars  for  the  decision  of  Atherton  v.  Atherton,  a 
wife  was  granted  a  divorce,  without  personal  service,  in  the  State  of  a 
domicil  acquired  by  her  after  separation,  on  the  sole  ground  that  in  the 
opinion  of  the  court  its  decree  would  be  binding  everywhere.  If  that  is 
the  law  it  disposes  of  the  case  of  a  husband  under  similar  circumstances, 
that  is  to  sa}'  of  the  present  case,  a  fortiori ;  for  I  suppose  that  the 
notion  that  a  wife  can  have  a  separate  domicil  from  her  husband  is  a 
modern  idea.  At  least  Ditson  v.  Ditson  confirms  the  assumption  that 
jurisdiction  is  not  dependent  on  the  wife's  actually  residing  in  the  same 
State  as  her  husband,  which  has  been  established  by  this  court.  Ather- 
ton V.  Atherton,  181  U.  S.  155  ;  Maynard  v.  Hill,  125  U.  S.  190  ;  Cheever 
V.  Wilson,  9  W^all.  108.  When  that  assumption  is  out  of  the  way,  I 
repeat  that  I  cannot  see  any  ground  for  distinguishing  between  the  ex- 
tent of  jurisdiction  in  the  matrimonial  domicil  and  that,  admitted  to 
exist  to  some  extent,  in  a  domicil  later  acquired.  I  also  repeat  and 
emphasize  that  if  the  finding  of  a  second  court,  contrary  to  the  decree, 
that  the  husband  was  the  deserter,  destroys  the  jurisdiction  in  the  later 
acquired  domicil  because  the  domicil  of  the  wife  does  not  follow  his,  the 
same  fact  ought  to  destroy  the  jurisdiction  in  the  matrimonial  domicil  il 
in  consequence  of  the  husband's  conduct  the  wife  has  left  the  State. 
But  Atherton  v.  Atherton  decides  that  it  does  not. 

It  is  important  to  bear  in  mind  that  the  present  decision  purports  tt 
respect  and  not  to  overrule  Atherton  v.  Atherton.  For  that  reason- 
among  others,  I  spend  no  time  in  justifying  that  case.  And  yet  it  ap 
pears  to  me  that  the  whole  argument  which  prevails  with  the  majority 
of  the  court  is  simply  an  argument  that  Atherton  v.  Atherton  is  wrong. 
I  have  tried  in  vain  to  discover  anything  tending  to  show  a  distinction 
between  that  case  and  this.  It  is  true  that  in  Atherton  v.  Atherton,  Mr. 
Justice  Gray  confined  the  decision  to  the  case  before  the  court.  Evidently, 
I  should  sa}',  from  internal  evidence,  in  deference  to  scruples  which  he  die 
not  share.  But  a  court  by  announcing  that  its  decision  is  confined  to  the 
facts  before  it  does  not  decide  in  advance  that  logic  will  not  drive  it  fur 
ther  when  new  facts  arise.  New  facts  have  arisen.  I  state  what  logir 
seems  to  me  to  require  if  that  case  is  to  stand,  and  I  think  it  reasonable 
to  ask  for  an  articulate  indication  of  how  it  is  to  be  distinguished. 

I  have  heard  it  suggested  that  the  difference  is  one  of  degree.  I  am 
the  last  man  in  the  world  to  quarrel  with  a  distinction  simply  because  it 


SECT.  IV.]  HADDOCK  V.   HADDOCK.  -ISS 

is  one  of  degree.  Most  distinctions,  in  my  opinion,  are  of  tliat  sort,  and 
are  none  tlie  worse  for  it.  But  the  line  which  is  drawn  must  be  justified 
by  tlie  fact  that  it  is  a  little  nearer  than  the  nearest  opposing  case  to 
one  pole  of  an  admitted  antithesis.  When  a  crime  is  made  burglary  by 
the  fact  that  it  was  committed  thirty  seconds  after  one  hour  after  sun- 
set, ascertained  according  to  mean  time  in  the  place  of  the  act,  to  take 
an  example  from  Massachusetts  (R.  L.  c.  219,  §  10),  the  act  is  a  little 
nearer  to  midnight  than  if  it  had  been  committed  one  minute  earlier, 
and  no  one  denies  that  there  is  a  difference  between  night  and  day. 
The  fixing  of  a  point  when  day  ends  is  made  inevitable  by  the  admis- 
sion of  that  difference.  But  I  can  find  no  basis  for  giving  a  greater 
iurisdiction  to  the  courts  of  the  husband's  domieil  when  the  married 
pair  happen  to  have  resided  there  for  a  month,  even  if  with  intent  to 
make  it  a  permanent  abode,  than  if  they  had  not  lived  there  at  all. 

I  may  add,  as  a  consideration  distinct  from  those  which  I  have  urged, 
that  I  am  unable  to  reconcile  with  the  requirements  of  the  Constitution, 
Art.  4,  §  1,  the  notion  of  a  judgment  being  valid  and  binding  in  the 
State  where  it  is  rendered,  and  yet  depending  for  recognition  to  the 
same  extent  in  other  States  of  the  Union  upon  the  comity  of  those 
States.  No  doubt  some  color  for  such  a  notion  may  be  found  in  State 
decisions.  State  courts  do  not  always  have  the  Constitution  of  the 
United  States  vividly  present  to  their  minds.  I  am  responsible  for  lan- 
guage treating  what  seems  to  me  the  fallacy  as  open,  in  Blackinton  v. 
Blackinton,  141  Mass.  432,  436.  But  there  is  no  exception  in  the  words 
of  the  Constitution.  "  If  the  judgment  is  conclusive  in  the  State  where 
it  was  pronounced  it  is  equally  conclusive  everywhere."  Christmas  v. 
Russell,  5  Wall.  290,  302  ;  Marshall,  C.  J.,  in  Hampton  v.  McConnel, 
3  Wheat.  234;  Mills  r.  Duryee,  7  Cranch,  481,  485;  Story,  Const. 
§  1313.  See  also  Hancock  National  Bank  v.  Farnum,  176  U.  S.  640, 
644,  645.  I  find  no  qualification  of  the  rule  in  Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  265.  That  merely  decided,  with  regard  to  a  case 
not  within  the  words  of  the  Constitution,  that  a  State  judgment  could 
not  be  sued  upon  when  the  facts  which  it  established  were  not  a  cause 
of  action  outside  the  State.  It  did  not  decide  or  even  remotely  suggest 
that  the  judgment  would  not  be  conclusive  as  to  the  facts  if  in  any  way 
those  facts  came  in  question.  It  is  decided  as  well  as  admitted  that  a 
decree  like  that  rendered  in  Connecticut  in  favor  of  a  deserting  husband 
is  binding  in  the  State  wliere  it  is  rendered.  Maynard  v.  Hill,  125  U.  S. 
190.  I  think  it  enougli  to  read  that  case  in  order  to  be  convinced  that  at 
that  time  the  court  had  no  tliought  of  the  divorce  being  confined  in  its 
effects  to  the  Territory  where  it  was  granted,  and  enough  to  read  Ather- 
ton  V.  Atherton  to  see  that  its  whole  drift  and  tendency  now  are  reversed 
and  its  necessary  consequences  denied. 


484  WEATHERLEY   V.    WEATHERLEY.  [CHAP.   III. 

WEATHERLEY  v.  WEATHERLEY. 
High  Court  of  the  Transv^aal   Province.    1879. 

[Reported  Transv.  Prov.  Rep.  66.] 

This  was  an  action  for  divorce  a  vinculo  matrimonii,  brought  by 
the  husband,  Colonel  Weatherley,  on  the  ground  of  his  wife's  adultery, 
alleged  to  have  been  committed  in  Pretoria  with  one  Gunn.^ 

KoTZE,  J.  The  parties  were  married  in  England  in  January,  1857, 
the  plaintiff  being  at  that  time  a  lieutenant  in  a  cavalry  regiment. 
After  the  marriage.  Colonel  Weatherley  and  his  wife  proceeded  to 
India.  They  subsequently  returned  to  England,  and  left  again  in  1875 
for  South  Africa,  arriving  in  the  Transvaal  in  January,  1876.  Their 
domicile  of  origin  is  English,  but  the  adultery,  if  any,  was  committed 
within  this  territory.  During  the  hearing  of  the  case,  owing  to  the 
facts  disclosed  in  evidence,  I  directed  counsel,  after  the  evidence  had 
been  taken,  to  argue  the  legal  question  whether  or  not  the  court  had 
jurisdiction  to  entertain  this  suit  for  divorce,  supposing  the  parties  not 
to  have  acquired  a  new  civil  domicile  of  choice  in  this  country. 

It  was  accordingly  maintained,  on  behalf  of  the  plaintiff,  that  there 
ought  to  have  been  a  dilatory  plea,  or  exception,  to  the  jurisdiction  of 
the  court  filed  by  the  defendant,  and  that  this  not  having  been  done, 
the  court  cannot,  according  to  the  Roman  Dutch  law  which  prevails  in 
this  country,  of  its  own  mere  motion,  raise  the  question  of  jurisdiction. 
Two  authorities  were  cited  in  behalf  of  this  position,  viz.,  Merula,  3Ian 
van  Proced.  (civ.  pract.),  lib.  iv.,  tit.  40,  ch.  1,  n.  1,  and  Van  der 
Linden,  p.  414  (Henry's  translation).  But  on  examination  it  will  be 
found  that  these  writers,  especially  Merula,  merely  lay  down  that  if 
the  defendant  wishes  to  take  objection  to  the  jurisdiction  of  the  court, 
he  must  do  so  by  way  of  preliminary  exception  before  he  pleads  over, 
otherwise  he  submits  himself  to  the  jurisdiction  of  the  court ;  and  not 
that,  if  he  neglects  to  file  a  declinatory  exception,  the  court  is  bound 
to  hear  the  case.  A  similar  rule  is  known  to  the  English  common  law, 
by  which  a  dilatory  plea,  e.g.,  to  the  jurisdiction,  was  not  available 
after  a  plea  in  bar.  So,  it  was  further  argued,  on  the  authority  of  Van 
Leeuwen  (Rom.  Dutch  Law,  lib.  v.,  chap.  8,  §  4),  that,  by  not  having 
pleaded  to  the  jurisdiction,  the  defendant  must  be  taken  to  have  tacitly 
consented  that  the  court  should  have  jurisdiction,  and  the  court  was 
consequently  precluded  from  raising  the  point  at  the  trial.  Here,  then, 
the  question  at  once  arises,  whether  the  mere  consent  of  parties  can 
give  the  court  jurisdiction?  The  passage  in  Van  Leeuwen  must  be 
taken  to  refer  to  matters  of  a  purely  private  and  doubtful  nature  only ; 
and  it  is  not  now  necessary  to  inquire  how  far,  in  matters  of  this  kind, 
the  doctrine  "  that  consent  of  parties  gives  jurisdiction  {prorogatio)" 
propounded  by  the  Roman  jurists,  when  treating  of  the  provisions  of 

1  The  statement  of  facts  and  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.    IV.]  V.'EATHEKLEY    i\    WEATHERLEY.  485 

the  Z/ez  Julia  Judiciorum,  and  followed  by  the  commentators  of  a 
later  date,  has  effect  at  the  present  da}-.  Van  der  Linden,  in  his  sup- 
plement to  Voet  {ad  Paudectas,  lib.  ii.,  tit.  1,  §  14),  says:  '"Cum 
diversorum  tribiinalium  institutio  ad  statum  publicum  pertineat ;  nee 
pactionibus  privatorum  houiinum  Juri  publico  derogari  possit."  Now, 
although  the  law  of  domestic  relations  is  treated  of  as  a  portion  of  the 
Jus  j)rivatum,  the  institution  of  a  tribunal  to  decide  on  questions  re- 
garding status,  arising  out  of  the  domestic  relations,  and  the  exercise  of 
jurisdiction  in  such  cases,  is  a  matter  which  pertains  ad  statum  publi- 
cum,—  to  the  public  welfare  of  the  whole  community  (cf  Huber,  Jus 
Hodiernum^  iv. ,  14,  §  29),  Marriage  is  not  a  mere  ordinary  private  con- 
tract between  the  parties  :  it  is  a  contract  creating  a  status,  and  gives 
rise  to  important  consequences  directly  affecting  society  at  large.  It 
lies,  indeed,  at  the  root  of  civilized  society.  If,  then,  in  a  matter  of 
divorce,  the  bare  consent  of  the  parties  can  be  held  sufficient  to  give 
jurisdiction,  there  is  no  protection,  no  safeguard,  against  the  parties 
acting  in  fraudem  letjis  ;  but  this  it  is  the  policy,  as  well  as  the  duty, 
of  every  court  of  justice  to  discourage  and  prevent.  Huber,  in  his  Jus 
Hodiernum,  1.  c  §  21-24,  has  very  justly  observed  that  such  a  doctrine 
would  lead  to  endless  confusion.  I  am  clearl}'  of  opinion,  therefore, 
that  the  mere  consent  of  the  parties  in  a  question  involving  their  matri- 
monial status,  including  divorce  a  vincido,  cannot  give  the  court  juris- 
diction and  make  its  decree  legal,  where,  in  the  absence  of  such  con- 
sent, the  exercise  of  jurisdiction  and  the  subsequent  decree  would  be 
illegal.  Nor  is  there  anything  to  prevent  the  court,  of  its  own  mere 
motion,  raising  the  question  of  jurisdiction.  Were  this  not  so,  the  court 
would  be  bound  by  the  neglect  or  omission  of  the  pleader  who  failed  to 
file  a  proper  declinatory  exception.  Moreover,  it  may  sometimes  hap- 
pen, as  in  this  very  case,  that,  only  after  the  evidence  has  been  part 
heard,  the  facts  disclosed  suggest  the  question  whether  or  not,  under 
the  circumstances,  the  court  has  jurisdiction  (cf  Van  Leeuwen,  R.  D. 
Law,  5,  4,  §  2,  n.  6). 

A  sentence  of  divorce  pronounced  by  a  competent  court  having 
jurisdiction  of  the  subject-matter  in  one  country,  is,  of  course,  binding 
on  the  courts  of  all  civilized  countries.  But  one  of  the  most  difficult 
and  embarrassing  questions  of  private  international  law  is  the  question, 
when,  and  under  what  circumstances,  will  the  tribunal  of  a  given  coun- 
try, declaring  a  valid  marriage  dissolved,  have  jurisdiction  to  do  so, 
in  order  to  cause  its  judgment  to  be  respected  and  recognized  by  the 
courts  of  every  other  country?  It  is  admitted  that  the  courts  of  any 
country  where  the  parties  have  their  bona  fide  civil  domicile,  have 
jurisdiction  to  dissolve  a  valid  raarria^'e  contracted  elsewhere.  Story, 
J>ishop,  Burge,  the  law  in  Scotland,  and  the  recent  cases  of  Shaw  v. 
Gould,  L.  R.  .3  IL  L.  83,  and  Wilson  /'.  Wilson,  L.  R.  2  P.  &  D.  441, 
all  agree  in  tliis.^  .   .  . 

1  Tlie  leaiiie<l  ju<lg<;,  upon  an  examination  of  the  facts,  decided  that  Colonel  Weath- 
erley  was  domiciled  in  England.     lie  then  examined  the  law  of  England.  — Eu. 


486  WEATHERLEY    V.   WEATHERLEY.  [CHAP.  III. 

In  Scotland,  however,  there  exists  no  doubt  or  difficulty  on  the  sub- 
ject. By  the  law  of  that  country,  which  (as  I  shall  show  hereafter)  is 
more  analogous  to  the  Roman  Dutch  Law,  it  has  been  laid  down,  by  a 
uniform  series  of  decisions,  that  the  Scotch  courts  have  jurisdiction,  on 
proof  of  a  just  cause  of  divorce,  to  dissolve  a  marriage  contracted  in 
England,  or  any  other  foreign  country,  and  they  will  sustain  process  of 
divorce  to  that  effect,  provided  merely  that  such  a  domicile  has  been 
acquired  in  Scotland  b}-  the  defendant  as  would  be  sufficient  to  found 
ordinary  civil  jurisdiction,  viz.,  a  simple  residence  of  forty  days  (Er- 
skine,  Inst.  Bk.  I.,  tit.  2,  §  20,  in  notis).  A  forty  days'  residence  in 
Scotland  excludes  all  consideration  of  a  foreign  domicile.  A  citation 
served  on  the  defendant  at  his  dwelling-place,  after  a  residence  of  forty 
days,  is  good  and  legal ;  but  if  the  citation  be  served  personall}-  on  the 
defender,  no  residence  of  forty  days  is  necessary.  It  is  to  be  pointed 
out  here  that  domicile  of  jurisdiction  merely  means  a  residence  of 
forty  days,  whether  aninio  manendi  or  not  is  immaterial ;  and  the 
distinction  between  it  and  civil  domicile,  i.e.,  permanent  residence, 
animo  manendi.^  must  not  be  lost  sight  of  in  discussing  the  question 
of  jurisdiction. 

The  doctrine  in  Scotland  is  based  on  the  right  of  the  Scotch  court  to 
redress  any  personal  wrong,  including  therefore  the  delictum  of  adul- 
tery, committed  by  a  defendant  within  the  territory  of  Scotland ; 
whereas  the  English  doctrine,  which  refuses  to  recognize  the  power 
of  foreign  tribunals  to  decree  a  dissolution  of  marriage  between  Eng- 
lish subjects  who  have  no  civil  domicile  {stricto  sensu)  in  the  foreign 
country,  is  founded  upon  the  principle  that  divorce  is  a  question  of 
status,  and  can  only  be  decreed  by  the  courts  of  the  place  of  domicile, 
for  no  nation  is  bound  to  recognize  the  judgment  of  a  foreign  tribunal 
in  dissolving  a  marriage  subsisting  between  its  own  domiciled  subjects 
temporarily  absent  abroad.  By  so  doing,  the  foreign  tribunal  inter- 
feres with  the  jurisdiction  leffis  domesticce,  and  this  no  independent 
nation  like  England  can  be  expected  to  tolerate. 

A  difference  of  opinion  and  principle  on  this  subject  leads  to  the 
most  serious  consequences.  If  I  were  to  hold  that  this  court  has  juris- 
diction, and  were  to  decree  a  divorce,  the  courts  in  England  may  ignore 
my  decree  altogether.  Suppose,  now,  that  Colonel  Weatherley,  and,  in 
like  manner,  Mrs.  Weatherley,  were  to  enter  into  a  second  marriage, 
and  that  in  each  case  issue  is  born  of  the  second  marriage,  this  second 
marriage  would  be  valid,  and  the  issue  legitimate  in  the  Transvaal,  in 
Scotland,  and  perhaps  in  other  countries,  whereas  by  English  law  the 
second  marriage  would  be  invalid,  the  issue  thereof  bastard,  and  Colonel 
and  Mrs.  Weatherley  would  be  guilty  of  bigamy,  and  punishable  as 
felons.  In  the  absence  of  any  uniform  rule,  the  court  must  lay  down 
a  principle  and  give  a  decision,  and  is,  moreover,  bound  to  state  the 
reasons  upon  which  it  professes  to  act.  When  judges  and  lawyers 
of  recognized  eminence  and  reputation  have,  with  great  learning  and 
ability,  expressed  different  views  on  the  subject,  it  behoves  one,  in  the 


SECT.    IV.]  AVEATHERLEY    V.    WEATIIERLEY.  487 

language  of  a  learned  commentator,  to  tread  both  reverently  and  cau- 
tiously, and  I  therefore  approach  the  question  with  some  diffidence. 
Huber,  in  his  J* reelect iones,  xo\.  ii. ,  de  conflictu  legmn,  §  2,  has  laid 
it  down  as  an  axiom  that  all  persons  who  are  actually  within  the  teiTi- 
tory  of  a  given  State,  whether  permanently  or  onh"  for  a  temporary 
purpose,  are  subject  to  its  laws  and  the  jurisdiction  of  its  courts.  No 
doubt  a  mere  temporary  subject,  s^ibditiu^  temjwranius,  as  Voet  {de 
Stdtutis,  n.  5)  terms  it,  is  not  liable  to  certain  portions  of  the  laws,  which 
are  alone  applicable  to  domiciled  subjects.  Thus  domiciled  subjects 
{Mricto  sensu)  are  liable  to  the  discharge  of  public  duties,  the  payment 
of  taxes,  and  also  exercise  certain  municipal  rights  and  privileges  from 
which  he  who  is  merely  a  temporary  resident  or  visitor  is  excluded  ; 
and  this,  it  seems  to  me,  is  the  meaning  of  Van  der  Keessel,  in  Thesis 
30,  so  much  pressed  upon  me  by  counsel  for  the  defendant.  But  a 
temporary  subject  is  amenable  to  the  court,  not  merely  in  the  case 
of  crime,  but  also  for  every  delict  or  wrongful  act  committed  by  him 
within  its  jurisdiction.  Bynkershoek,  de  foro  legatorum,  cap.  3,  to 
which,  at  the  conclusion  of  the  argument,  my  attention  was  drawn,  also 
adopts  this  view.  He  says,  that  a  mere  temporary  or  casual  visitor  to 
Holland  does  not  establish  a  forum  in  that  countr}'  for  all  purposes, 
quia  advena  est,  tion  subditus  ;  that  is  to  say,  not  a  domiciled  subject, 
although  he  would  come  under  the  jurisdiction  of  the  courts  of  Holland 
ddicti  causa.  A  temporary  resident,  therefore,  would  be  liable  for 
defamation,  ordinarj'  trespass,  seduction,  and  the  like,  committed  bv 
him  in  the  foreign  territory.  In  these  instances  the  court  of  the  place 
where  the  wrong  is  committed  has  power  to  give  redress  to  the  injured 
party  ;  why,  then,  should  the  court  not  have  jurisdiction  also  to  redress 
a  matrimonial  wrong,  viz.,  adultery?  Those  who  answer  this  question 
in  the  negative  maintain  that  divorce  is  a  matter  of  status,  and  must 
be  referred  to  the  lex  domicilii  of  the  parties.  Thus,  Lord  Westbury, 
in  Shaw  v.  Gould  (L.  R.  3  H.  L.  83),  observes:  "  Questions  of  personal 
status  depend  on  the  law  of  the  actual  domicile.  It  is  said  b}^  a  foreign 
jurist  of  authority  (Rodenburg),  and  his  works  arc  cited  with  approba- 
tion by  many  recent  writers  :  '  Unicum  hoc  ipsa  rei  natura  ac  necessitas 
invexit  ut  cum  de  statu  et  conditione  hominum  quteritur,  solum  modo 
judici,  et  quidem  domicilii,  univcrsum  in  ilia  jus  sit  attributum.*  This 
position,  W\dit  unirer  sum  jus,  —  that  is,  jurisdiction  which  is  complete, 
and  ought  to  be  everywhere  recognized,  does  in  all  matters  touching 
the  personal  status  or  condition  of  persons  belong  to  the  judge  of  that 
country  where  the  persons  are  domiciled, — has  been  generally  reco""- 
nized."  But  it  may  be  said,  in  answer  to  this,  that  it  has  not  been 
generally  recognized  that  jurisdiction  belongs  exclusively  in  all  matters 
of  status  to  the  judge  of  the  actual  domicile  alone  for  all  purposes. 
Scotch  judges  and  lawyers  have  adopted  a  different  view,  and  John 
Voet  distinctly  controverts  the  doctrine  of  Rodenburg.  In  his  com- 
mentary, ad  Pandeclas,  lib.  1,  de  Statutis,  No.  8,  after  quoting  the 
above  passage  from  Rodenburg,  he  says  :  "  Sed  quae  ilia  fuerit  rei 
natina  fiuii-   necessitas  satis   urgens   nee  duni    licuit   animadvertere." 


488  WEATHERLEY    V.    WEATHERLEY,  [CHAP.    III. 

Rodenburg  argues  that,  in  matters  affecting  the  status  of  an  individual, 
we  should  apply  the  law  of  one  fixed  place,  viz.,  of  the  domicile  ;  for  it 
would  be  absurd  that  a  person  should  undergo  a  change  of  status  in 
ever}' country  he  might  happen  to  visit  or  pass  through:  e.g.,  that  a 
part}'  should  be  sui  juris,  or  a  wife  iyi  potestute,  or  a  prodigal,  in  one 
place,  and  alieni  juris,  extra  jyotestatem,  and  frugus  in  another  place. 
This  argument  is  said  to  be  founded  on  convenience,  and  the  rule  ma}' 
now  be  taken  to  be  that  the  personal  status  of  a  part}-,  as  defined  b)' 
the  law  of  his  domicile,  whether  of  origin  or  habitation,  follows  the 
person,  like  his  shadow,  ever3'where  (cf.  Van  der  Keessel,  Th.  42). 
But  what  is  the  precise  extent  or  scope  of  this  rule  ?  Does  it  indis- 
criminately apply  to  all  matters  of  status  for  all  purposes?  It  may  be 
sound  and  reasonable  to  lay  down  that  a  person  who  is  a  minor  or 
prodigal  by  the  law  of  his  domicile  should  be  so  considered,  even  in  a 
foreign  country,  as  regards  transactions  entered  into  b}'  him  there.  It 
ma}'  be  that  a  married  woman  who  is  considered  as  a  minor  by  the  law 
of  her  domicile  should  be  considered  a  minor  in  every  other  country. 
But  then  the  law  of  the  foreign  country  relating  to  minors  and  prodi- 
gals, where  the  transaction  takes  place  and  comes  into  question,  is  to  be 
resorted  to,  and  not  the  lex  domicilii  (cf.  Huber,  Pradectiones,  vol.  ii., 
de  conflictu  legum,  §§  12,  13).  On  the  other  hand,  the  contract  of 
marriage,  which  creates  the  status  of  husband  and  wife,  depends  for 
its  validity  on  the  law  of  the  place  where  the  marriage  is  celebrated, 
which  is  often  not  the  law  of  the  domicile.  Here,  then,  the  question 
whether  the  parties  to  the  contract  of  marriage  are  husband  and  wife  — 
a  question  of  personal  status  in  the  strictest  sense  of  the  word  —  is 
determined  by  the  lex  loci  contractus,  and  not  by  the  law  of  the  domi- 
cile of  the  parties.  It  may  very  fairly  be  doubted  whether  the  doctrine 
of  Rodenburg,  which  professes  to  be  founded  on  convenience  and  ex- 
pediency, does  not  admit  of  a  limitation.  It  may  very  fairly  be  doubted 
whether  the  rule  can  be  extended  so  as  to  exclude  a  foreign  tribunal 
from  exercising  its  jurisdiction  in  matrimonial  matters  over  persons 
who,  although  domiciled  elsewhere,  are  nevertheless  bona  fide  resident 
within  the  foreign  country.  The  foreign  law  of  England  can  in  this 
case  only  be  allowed  to  have  effect  in  this  territory,  in  so  far  as  it  does 
not  interfere  with  our  law  and  the  authority  of  our  courts,  or  with 
the  rights  of  our  citizens,  with  good  government,  and  public  utility. 
"  Rectores  imperiorum  id  comiter  aguut,  ut  jura  cujusque  populi  intra 
terminos  ejus  exercita,  teneant  ubique  suam  vim,  quatenus  nihil  potes- 
tati  aut  juri  alterius  imperantis  ejusque  civium  prgejudicetur  "  (Huber, 
Prcelectiones,  vol.  ii.,  de  conflictu  legum,  §  2).  It  is,  moreover,  the 
province  of  this  court  alone,  and  not  of  the  foreign  tribunal,  to  lay 
down  what  is  the  law  applicable  to  the  case  before  it,  and  what  is 
most  in  accord  with  good  government,  justice,  or  public  convenience  in 
the  Transvaal.^  .  .  . 

1  The  learned  judge  here  cited  and  examined  at  length  passages  from  Burge,  For- 
eign and  Colonial  Law,  vol.  i.,  p.  689,  and  Bishop,  Marriage  and  Divorce,  vol.  ii., 
ch.  X.,  §  138.  — Ed. 


SECT.    IV.]  WEATHERLEY    V.    WEATHERLET.  489 

The  principle  that  tlie  courts  of  the  parties'  actual  domicile  alone  can 
dissolve  the  marriage  tie  existing  between  them  seems  to  me  entirely 
inexpedient,  and  may  lead  to  positive  injustice.      Expediency  is  al- 
together against  such  a  rigid  doctrine.     Let  me  put  a  few  examples. 
Suppose  an  English  gentleman  is  appointed  civil  governor  of  a  colony, 
say  for  five  years,  or  is  appointed  a  special  commissioner  to  investigate 
certain  matters  in  the  colony.     He  leaves  England,  where  he  has  his 
.lomicile,  with  his  wife  and  family,  and  takes  up  his  residence  in  the 
colonv.    While  there,  his  wife  commits  adultery.    Now  the  rule  which 
tlie  learned  persons  I  have  mentioned  contend  for,  would  effectually 
deprive  the  innocent  husband  of  redress  at  the  hands  of  the  tribunal 
within  whose  territory  the  commission  of  adultery  took  place.     Take 
another  instance.     An  EngUsh  engineer  is  employed  by  a  company  to 
construct  a  line  of  railway  or  open  a  mine  in  the  Transvaal.    He  brings 
out  his  wife  and  family  with  him  to  this  country,  where  he  will  probably 
remain  for  a  few  years.    Under  these  circumstances  the  domicile  is  still 
English.    The  husband  commits  adultery  and  deserts  his  wife  ;  is,  now, 
this  court  precluded  from  affording  protection  and  redress  to  the  in- 
nocent wife  because,  although  the  adultery  was  committed  here,  her 
domicile  is  in  England,  she  being  only  a  temporary  resident  in  the 
Transvaal?     Would  the  refusal  of  the  court  to  exercise  jurisdiction  not 
be  a  denial  of  justice  to  her?     Is  she  to  be  compelled  to  seek  relief  in 
a  court  6,000  or  7,000  miles  away  from  the  place  where  the  wrong  was 
committed  and  all  the  witnesses  reside?     It  may  often,  under  such 
circumstances,  be  practically  impossible  for  her  to  proceed  to  England 
without  pecuniary  assistance  from  her  husband,  which  she  is  not  likely 
to  obtain.     Or  suppose  that  in  all  these   instances  the  wife  commits 
adultery,  is  the  husband  to  wait  until  his  return  to  England  before  he 
can  hope  to  be  released  from  a  bond  uniting  him  to  an  adulteress? 
Pursue  this  matter  a  little  further,  and  suppose  that  the  governor,  or  the 
special  commissioner,  is  ordered  to  another  colony,  or  the  engineer  is 
obliged  to  accept  a  fresh  engagement  in  some  other  place,  what  is  each 
of  them  to  do  with  his  guilty  wife?     Must  each  of  them  wait  till  he 
returns  to  the  country  of  his  domicile  before  instituting  proceedings, 
when  probably  the  witnesses  to  testify  to  her  adultery  are  all  dead? 
The  constant  and  increasing  intercourse  going  on  between   England 
and  her  colonies,  which  are  to  a  great  extent,  for  purposes  of  jurisdic- 
tion, foreign  countries,  will  suggest  numerous  other  examples ;  and  it 
seems  to  me  that  a  strict  adherence  to  the  doctrine,  which  excludes  the 
exercise  of  jurisdiction  on  the  part  of  the  tribunal  of  the  place  where 
the  adultery  is  committed,  and  entirely  confines  it  to  the  tribunal  of  the 
actual  domicile,  is  productive  of  mu(;h  delay  and  expense,  inconvenience 
and  injustice.     I  cannot  hell)  thinking  that  Rodenburi;-  never  intended 
that  the  rule  he  laid  down  on  the  ground  of  convenience  should  receive 
the  extensive  and  exclusive  application  which  some  lawyers  have  given 
to  it.     The  rule  is  supposed  to  be  based  on  convenience,  and  as  soon, 
therefore,  as  it  ceases  to  be  convenient  by  causing  positive  inconven- 


490  WEATHEKLEY    V.    WEATHERLEY.  [CHAP.  IIL 

ience,  it  ought  no  longer  to  apply.     Cessaute  mtione  legis  cessat  le^; 
ipsa  J  .   .   . 

The  present  case  comes  to  this :  An  English  gentleman  and  his  wife 
are  temporary  residents  in  the  Transvaal.  The  court  of  this  country 
recognizes  tlieir  status  of  husband  and  wife.  It  will  compel  them  to 
fulfil  and  observe  towards  each  other  all  the  duties  to  which  the  rela- 
tion they  occupy  gives  rise.  It  will  recognize  the  authority  of  the 
father  over  the  children  of  the  marriage,  and  is  bound  to  redress  all 
wrongs  and  injuries  peculiar  to  the  marriage  relation  committed  within 
the  limits  of  the  territory  over  which  its  jurisdiction  extends.  If  the 
husband  ill-treats  his  wife,  refuses  her  support,  or  deserts  her,  she  has 
a  right  to  seek  redress  from  this  court,  within  whose  jurisdiction  she 
and  her  husband  reside,  and  where  the  wrong  is  committed.  This  court 
laay  entertain  a  suit  for  restitution  of  conjugal  rights  at  the  instance  of 
either  the  husband  or  the  wife.  Why  may  it  not,  then,  decree  a  divorce 
a  vinculo  on  the  ground  of  adultery?  Where  is  the  law  which  forbids 
it.  Where  is  the  law  which  says,  You  shall  recognize  the  relation  of 
husband  and  wife,  but  shall  forbear  to  take  cognizance  of  and  redress 
wrongs  committed  in  violation  of  the  marriage  relation  within  your 
jurisdiction?"  .  ,  . 

Upon  the  whole,  then,  I  have  come  to  the  conclusion  that  this  court 
has  jurisdiction,  for  the  following  reasons,  viz.  :  1st.  Upon  the  genera" 
ground  that,  by  Roman  Dutch  Law,  the  court  has  power  to  take  cogni- 
zance  of  any  wrong  or  delict  committed  within  this  territory  by  persons 
having  an  actual  bona  fide  residence  here  at  the  time,  it  being  imma- 
terial whether  such  residence  amounts  to  a  chmicilium  or  not,  and  to 
apply  the  suitable  remedy  thereto.  2d.  Upon  the  ground  that  sound 
poUcy,  expediency,  and  justice  demand  that  jurisdiction  should  be 
assumed.  3d.  Upon  the  ground  that  the  law  of  Scotland,  which  is 
most  analogous  to  the  Roman  Dutch  law,  favors  the  assumption  au- 
exercise  of  jurisdiction  under  the  cirumstances  of  this  case. 

There  are,  however,  certain  special  features  in  this  case,  connectea 
with  the  question  of  jurisdiction,  which  must  not  be  lost  sight  of.  The 
petitioner  and  respondent  have  had  a  bona  fide  residence  of  three  years 
in  this  country.  This  is,  as  it  were,  a  middle  case.  If,  on  the  one 
hand,  the  parties  are  not  domiciled  here,  on  the  other  hand  they  are 
not  mere  casual  travellers, —here  to-day  and  there  to-morrow.  The^, 
have  not  repaired  to  this  country  with  the  view  of  giving  this  cour' 
jurisdiction  in  fraudem  h-gis  domicilii.  The  adultery,  if  any,  was 
committed  here,  and  the  respondent  has  been  personally  served  with 
the  summons,  and  has  entered  appearance.     The  adultery  of  the  wife 

1  The  learned  judge  here  cited  and  examined  a  passage  from  Phillimore,  Internar 
Law,  vol.  iv.,  ch.  21,  §  96.  — Ed. 

2  The  learned  judge  here  quoted  from  the  opinions  of  Lord  ]\Ieado\vbank  in  Utter 
ton  V.  Tewsh,   Ferguson,   23,  57,   of  Lord  Colonsay  in  Shaw  v.  Gould,  L.  R.  3  H.  L. 
95,  and  of  the  Lord  Justice  Clerk  (Hope)  in  Shields  v.  Shields,  15  Sess.  Cas. 
(N.  S.)  142;   and  examined  the  case  of  Newberry  v.   Newberry,   1  Menz.  Rep.  248 
^cited).— Eu. 


SECT.    IV.]  AVILHELM   V.   WILHELM.  .  "^^l 

is  recognized  in  all  Protestant  countries,  including  England  (the  locus 
domidUi),  as  a  valid  cause  of  dissolution  a  vinculo  matrimomi.  Ibe 
courts  in  England,  therefore,  cannot  say,  if  I  were  to  grant  a  decree 
dissolving  the  marriage,  that  the  dissolution  is  grounded  on  a  cause  of 
divorce  which,  in  England,  is  considered  contra  honos  mores,  and  at 
variance  with  the  policy  of  its  marriage  laws.  But  these  circumstances 
are,  properlv  speaking,  rather  matters  for  the  consideration  ot  the  courts 
ia  England  than  for  this  court.  So  long  as  different  countries  have 
different  laws  of  divorce,  so  long  will  inconvenient  consequences  be  the 


result 


WILHELM    I'.   WILHELM. 
Court  of  Appeal  of  Paris.     1896. 

[Reported  23  Clunet,  149.] 
The  Court  The  appellant,  a  Frenchwoman  by  birth,  married  at 
Paris  February  13,  IB?."),  John  Henry  Wilhelm,  a  German  subject. 
In  June  1876,  he  abandoned  the  conjugal  domicile  without  letting  her 
know  where  he  had  gone,  and  since  that  time  the  wife  has  had  no  news 
of  him  As  a  result,  after  several  years  of  waiting,  Mrs.  Wilhelm  filed 
a  petition  for  divorce  against  her  husband;  but  the  judges  below 
declared  themselves  without  jurisdiction  because,  the  parties  being 
foreigners,  the  French  courts  could  not  pass  on  such  a  question.  But 
the  i!icompetence  of  French  courts  to  entertain  suits  between  for- 
eicrners  is  not  absolute  ;  it  is  facultative  only,  the  judge  having  power, 
ac'cordin-  to  the  circumstances,  to  take  or  to  refuse  to  take  cognizance 
'  of  the  affair  submitted  to  them.  A  proper  occasion  for  making  use 
of  the  power  thus  reserved  to  them  exists  when,  as  in  this  case,  the 
domicile  of  the  defendant  is  unknown,  and  consequently  the  plamtiti, 
a  resident  of  France,   cannot  apply  to  any  other  court. 

On  the  merits:  since  the  facts  show  that  Wilhelm  abandoned  his 
^ife  many  years  ago,  under  conditions  injurious  to  her  and  that  a 
divorce  may  be  decreed  against  him,  for  these  reasons  the  ju.lgment 
appealed  from  is  reversed,  and  it  is  adjudged  that  the  Pn bun alo 
the  Seine  was  competent  to  pass  upon  the  petition  for  divorce  filed 
bv  Mrs.  Wilhelm.  And  since  the  cause  is  ripe  for  judgment,  judg- 
ment is  -iven  on  the  merits.  Divorce  is  decreed  between  the  Wil- 
helms  on  the  wife's  libel,  with  all  the  legal  consequences.    .  .  . 

1  The  leainea  judge  l.ere  review.-d  tlie  evidence,  and  declined  to  grant  a  divorce  on 
the  "round  of  collusion. —  hi>-  io  t  i,  icao /on 

^This  is  now  the  established  rule  of  the  French  courts.  Cass.  18  •'"  >;/8f^  (^^ 
ClunJt  177)  "  Paris,  12  Jan.  1804  (21  Clunet,  128)  ;  I'aris,  7  Dec.  1894  (22  Clunet. 
^1\  ■  Seine   24  May,  1897  (2.5  Clunet,  111).  ,        ^        i  •  i 

'^Tl^^eral  rub  that  a  divorce  can  1.  g.-antcd  only  ^n  the  .ounry  ..^In.h 
the  parties  owe  allegiance   prevails  generally  ur  Europe.     Pans.  28   May.   1884   (11 


492  .  IN    RE    W'S    MARRIAGE.  [CHAP.    III. 


In  re  W'S  MARRIAGE. 

Supreme  Court  of  Austria.     1896. 
\_Reported  25  Clunet,  385.] 

In  a  complaint  filed  May  3,  1892,  in  the  Court  of  First  Instance  of 
Prague,  criminal  session,  Prince  Francis-Victor  B.  alleged  that  on  the 
6th  of  October,  1878,  at  Nizbor,  Bohemia,  he  had  married  Marie  K. 
according  to  the  Roman  Catholic  forms  ;  and  that  by  a  decision  of  the 
County  Court  of  Karolinenthal,  on  July  12,  1890,  a  judicial  separation 
had  been  decreed  between  them.  Madame  B.  had  then  abjured  the 
Catholic  religion  and  entered  the  Unitarian  Church,  and  on  the  28th  of 
November,  1891,  at  Klausenburg,  Transylvania,  had  contracted  a  second 
marriage  with  Leopold  W.,  formerly  domiciled  at  C,  in  the  county  of 
i5:arolinenthal.  At  the  time  of  filing  this  complaint,  Francis-Victor  B. 
prayed  the  court  to  decide  whether  the  marriage  between  himself  and 
Marie  K.  should  be  regarded  as  still  existing. 

A  criminal  suit  was  instituted  on  complaint  of  the  Imperial  Proctor. 
It  was  found  upon  investigation  that  Marie  B.  and  Leopold  W.  had 
renounced  their  Austrian  nationality.  In  accordance  with  a  decree  of 
the  Hungarian  Minister  of  the  Interior,  November  9,  1891,  Leopold  W., 
adopted  by  Alexander  S.,  acquired  Hungarian  nationality;  Marie  B., 
adopted  by  Joseph  F.,  did  the  same  by  decree  of  the  same  Minister, 
dated  October  28,  1891.  According  to  the  evidence  of  the  priest  of 
Klausenburg,  Marie  K.,  wife  of  B.,  inhabitant  of  that  village,  was  on 
September  28,  1891,  received  into  the  Unitarian  Church  after  having 
abjured  the  Roman  Catholic  religion.  A  certificate  of  the  Burgomaster 
of  Klausenburg,  November  28,  1891,  proved  that  Leopold  W.  was  a 
citizen  of  Klausenburg.  The  Superior  Ecclesiastical  Court  of  Klausen- 
burg, November  27,  1891,  affirmed  the  judgment  of  the  Inferior  Eccle- 
siastical Court  of  November  19,  1891,  which  had  pronounced  a  divorce 

Clunet,  623)  ;  Seine,  10  May,  1897  (25  Clunet,  115) ;  Athens,  1897  (25  Clunet,  962)  ; 
Milan,  15  Feb.  1876  (3  Clunet,  220);  Sweden,  14  Aug.  1893  (21  Clunet,  602  ;  but  see 
Sweden,  28  Feb.   1894,  22  Clunet,  191). 

In  some  of  these  states  a  divorce  will  be  granted  to  a  domiciled  foreigner  if  he 
proves  that  full  recognition  will  be  given  to  the  divorce  in  the  country  to  which  he 
owes  allegiance.  Antwerp,  16  March,  1895  (23  Clunet,  655)  ;  Geneva,  26  Nov.  1898 
(26  Clnnet,  876);  Trib.  Fed.  Switz.  1898  (26  Clunet,  191);  Genoa,  7  June,  1894  (25 
Clunet,   412)  ;   Monaco,   17  May,  1895  (23  Clunet,   913). 

In  other  states  of  Europe  the  domicile  of  the  parties,  or  of  the  defendant,  is  enough 
to  give  jurisdiction  for  divorce.  German  Empire,  19  June,  1883  (11  Clunet,  307)  ;  Lux- 
emburg,  5  Jan.  1887  (14  Clunet,  674) ;  Netheriands,  28  May,  1897  (26  Clunet,  869). 
In  Austria  the  state  of  domicile  has  jurisdiction  if  the  parties  both  consent. 
Supreme  Court,   7   March,    1883   (15  Clunet,  128);   4   Feb.   1891   (18  Clunet,  999). 

In  France  and  Switzerland  incompetence  to  pronounce  a  divorce  between  foreigners 
is  due  solely  to  defect  of  personal  jurisdiction;  objection  must  be  set  up  by  the  defend- 
ant in  limine,  or  he  cannot  object.  Seine,  5  June,  18§1  (19  Clunet,  194)  ;  Besan5on, 
18  Dec.  1896  (25  Clunet,  355)  ;  Algiers,  1  Feb.  1897  (25  Clunet,  352) ;  Geneva,  6  May, 
1876   (3  Clunet,   227).  —  Ed. 


SECT.   IV.]  I^'   RK   W'S   MARRIAGE. 

between  Marie  K.  and  her  husband  Francis-Victor  B.,  and  had  autho- 
ri7pd  the  former  to  marr\-  again. 

IccordiL  to  a  certificate  Sf  the  Evangelical  minister  of  Klausenburg 
LeopoW  W  ,  a  member  of  the  Evangelical  Church,  domiciled  a  Klaus- 
^nbuCand  Marie  K.,  a  member  of  tl^eUnitanan  Church  d.^^^^^^ 
from  her  former  husband,  were  married  November  29,  1891,  the  cer 
t  fixate  added  that  the  marriage  took  place  in  the  Evangehca  Church 
tifacate  acutca  I  =         Unitarian  Church,  because  the  priest 

:?^tr:h;;;ih  ;::^;orant  of  German  -nd  also^ecaus^  Maj^ 
K  had  left  the  Unitarian  Church  to  embrace  the  Evangel  cal  lel  gion 
The  administrator  of  the  Circle  of  Klausenburg  attested,  b3-  certificate 
dated  November  13,  1893,  that  Leopold  W.  is  a  citizen  of  Klau.en- 
W  and  iTs  lived'there  for  two  years.     The  Admimstra tor  of  the 
District  of  Kuttenberg  attested,  by  certificate  of  April  10    1  94  tha 
Francis-Victor  B.  has  given  up  his  Austrian  -^^^^^^l  ^^^'\^^^^^^^ 
Wncr  in  Hungary.    By  decree  of  the  Hungarian  Mmister  of  the  Inteiior, 
"red  Juyl8,\894    Francis-Victor  B.  was  naturalized  in  HungaiT; 
ac  ordin-  to  a  certificate  of  the  Unitarian  Ecclesiastical  Court  of  Buda- 
Testh  heleft  the  Roman  Catholic  Church   April  9,  IBM,  and  embraced 
the  Unitarian  faith.     In  accordance  with  a  judgment  of  the  Inteuor 
Mtalti  Court,  affirmed  on  appeal,  a  divorce  was  P--J-d  be^w^en 
Francis-Victor  B.  and  his  wife,  and  the  former  was  allowed  to  raairy 
™  He  declared  that  he  had  no  legal  cause  of  complaint  agamst 
Marie  K    and  recognized  the  validity  of  her  second  marriage. 
""sTa  dedsion  of^January  24,  1893,  the  Court  of  f-^  LasUn^  o 
Prao^ue  decided  that  it  had  jurisdiction  to  pass  on  the  validity  of  the 
^"riage  between   Marie  B.  and   Leopold  W.  ;    and  b3^3udgmeiU  o 
December  26.  1895,  it  declared  the  marriage  null.^  .  .  .  B}  a  judgment 
of Tp"    8,  1896,  the  Court  of  Appeal  of  Prague  affiled  the  decision. 
?  .      Upoi  awrit  of  error  the  Supreme  Court,  on  October  20,  1896, 

rendered  the  following  decision.  ,     ,      «  ,:„htlv  deoKred 

The  Court.   The  judges  of  the  lower  courts  have  "g»^«>  f  ^^'^^^^^^ 
null,  in  the  countries  governed  by  the   ^^j\^.-^' ^'JT M,Zln 
Marie  K.'s  second  marriage.     It  is  wrong  to  ol,ect  ^bay^^^ustii^ 
courts  cannot  pass  upon  this  question,  because  Leopo  d  W.  and  Mane 
K   are  foreigners  and  do  not  belong  to  the  Catholic  Church,  since  tliej 
Lubjured  their  Austrian  nationahty  and  their  Catholic  religion  b^ 
o      their  marriage,  and   the  marriage  was  contracted   abroad^^^^^^^^ 
question  is  really  not  whether  tliis  marriage  was  contracted  accoid  ng 
Tthe  regular  forms  required   by  the  Hungarian  ^^^^^^^^^^ 
effects  this  marriage  can  produce  in  countries  governed  bj' the  Austrian 
aiil  Code,  especially  as  regards  f-ib;rights  and  tlie  ng^^^^ 
sion.     For  the  following  reasons  the  opinion  of  the  Couit  of  Appeal 

^"f  Franct  B.  and  Marie  K.  were  married,  at  a  time  when  both  were 
of  Au!trr  nationality  and  belonged  to  tlie  ^orr.^  ^^^^'^'^^^ 
in  the  church  of  Nizbor,  according  to  the  Roman  Catholic  forms. 

1  The  ..pillions  <if  ll.c  lower  couits  are  omitted.  —  Kd. 


494  IN    RE    W'S    MARRIAGE.  [CHAP,   III. 

2.  The  marriage  has  not  up  to  this  time  been  dissolved  according  to 
the  rules  laid  down  in  the  Civil  Code  ;  the  spouses  have  simply  obtained 
a  judicial  separation,  pronounced  July  12,  1890,  by  the  Count}-  Court 
of  Karolinenthal. 

3.  A  short  time  after  this  separation,  Marie  K.,  having  abjured  the 
Austrian  nationality  and  the  Catholic  religion  to  embrace  the  Hungarian 
nationality  and  the  Unitarian  religion,  contracted  a  new  marriage  with 
Leopold  W.  at  the  Evangelical  Church  in  Klausenburg. 

4.  Finall}',  Francis  B.  and  Leopold  W.  both  own  landed  estates  at 
K.,  district  of  Karolinenthal,  as  to  which  they  are  subject  to  the  juris- 
diction and  the  provisions  of  the  Austrian  law. 

It  is  doubtless  averred  that  the  ecclesiastical  courts  of  Klausenburg 
had  declared  the  marriage  between  Francis  B.  and  Marie  K.  dissolved, 
and  have  authorized  the  latter  to  marry  again.  But,  for  one  thing, 
these  decisions  affect  Marie  K.  alone  ;  for  another,  at  the  time  of  their 
marriage  Francis- Victor  B.  and  Marie  K.  belonged  to  the  Catholic 
religion,  and  by  the  terms  of  §  111  of  the  Civil  Code  a  marriage  of  that 
kind  cannot  be  dissolved.  This  section  is  the  more  applicable  to  this 
case  because  at  the  time  the  judgments  were  given,  Francis  B.  still 
belonged  to  the  Austrian  nationality,  and  as  a  result  the  Austrian 
courts  alone  could  take  jurisdiction  of  a  suit  for  the  dissolution  of  his 
marriage.  Later,  it  is  true,  in  1894  or  1895,  Francis-Victor  B.  himself 
abjured  his  Austrian  nationality  to  become  an  Hungarian,  and  then 
abjured  the  Roman  CathoHc  religion  to  embrace  the  Unitarian  ;  that  he 
obtained  a  judgment  of  the  ecclesiastical  court  dissolving  his  marriage 
with  Marie  K.  and  authorizing  him  to  marry  again  ;  and  finally  that  he 
declared  that  he  considered  his  wife's  second  marriage  valid.  But  all 
these  things  are  insufficient  to  justify  the  abandonment  of  the  official 
inquiry  set  on  foot  by  the  Austrian  decree,  still  in  force,  of  August  23, 
1819.  For,  1,  the  laws  of  marriage  have  their  foundation  in  public 
policy.  2.  The  marriage  contracted  October  30,  1878,  according  to 
the  Catholic  form,  in  the  church  of  Nizbor,  between  Francis-Victor 
B.  and  Marie  K.,  ought,  in  Austria,  to  be  considered  in  full  force. 
3.  The  question  of  the  validity  of  this  marriage  should  be  dealt  with 
solely  according  to  Austrian  law ;  and  the  decisions  rendered  in  this 
case  by  the  ecclesiastical  courts  are  foreign  judgments  without  force 
here.  4.  Since  no  Austrian  court  has  declared  the  marriage  between 
Francis-Victor  B.  and  Marie  K.  at  an  end,  it  continues  in  existence. 
5.  The  judicial  separation  between  them,  pronounced  July  12,  1890. 
by  the  County  Court  of  Karolinenthal,  is  not  transformed  into  a  divorce 
by  the  mere  fact  that  the  spouses  have  abjured  the  Catholic  religion 
and  entered  the  Protestant  church.  6.  According  to  Austrian  law, 
especially  §  93  of  the  Civil  Code,  spouses,  even  upon  agreement  between 
them,  are  not  permitted  to  dissolve  their  marriage  b}-  their  own  will. 
7.  The  consequences  and  legal  effects  of  the  foreign  marriage  between 
Leopold  W.  and  Marie  K.  ought,  as  between  the  latter  and  her  first 
husband,   to  be  determined    according  to  the  situation  as  it  was  at 


SECT.    IV.]  TIRVEILLOT   V.    TIRVF.ILLOT.  495 

the  moment  of  the  second  marriage.  8.  At  that  time,  Francis-Victor 
B-  was  still  an  Austrian  citizen;  furthermo'-e,  he,  as  well  as  Leopold 
"W.,  possessed  landed  estates  in  Austria  ;  both  had  their  domicile  there. 
The  competence  of  the  court  of  Prague  is  the  clearer,  because  Francis- 
Victor  B.,  in  the  petition  addressed  to  the  Court  of  First  Instance  of 
Prague,  praying  for  an  inquir}-,  described  himself  as  belonging  to  the 
Catholic  reUgion,  and  as  an  Austrian  citizen  domiciled  within  the  dis- 
trict of  the  court.  Marriage,  as  the  foundation  of  the  family,  should  be 
the  union  of  one  man  witii  one  wife.  Tiiis  principle  is  recognized  by 
the  Austrian  Civil  Code,  for  §  <o2  provides  that  "  a  man  can  at  one  time 
have  but  one  wife,  and  a  woman  but  one  husband  ;  and  any  person  who, 
having  been  once  married,  desires  to  contract  a  new  marriage  should 
establish  the  dissolution  of  the  marriage."  And  again  §  111  provides : 
'•  Marriage  legally  contracted  between  Catholics  cannot  be  dissolved 
save  by  the  death  of  one  party,  and  is  therefore  indissoluble,  even  if 
but  one  of  the  parties  belongs,  at  the  time  of  the  marriage,  to  the 
€atholic  Church."  The  last  provision  is  to  be  applied,  according  to  a 
ministerial  circular  of  July  14,  1854  (Bulletin  of  Laws,  no.  193),  even 
in  a  case  where  after  the  marriage  the  spouses,  or  one  of  them,  are 
converted  to  the  Protestant  religion.  The  statutory  provisions  have 
not  been  modified  by  the  laws  of  May  25,  1868  (Bulletin  of  Laws, 
no.  47),  and  of  April  9,  1870  (Bulletin  of  Laws,  no.  51). 

It  follows  from  these  facts  that  at  the  time  of  Marie  K.'s  second 
marriage  the  dissolution  of  her  first  marriage  had  not  taken  place  in 
Austria;  her  second  marriage  was  therefore  null,  according  to  the 
terms  of  §§  62  and  111  of  the  Civil  Code,  in  all  countries  governed  by 
the  Austrian  Civil  Code.^ 


TIRVEILLOT  v.  TIRVEILLOT. 

Civil  Tribunal  of  the  Seine.     1898. 

[Reported  25  Clunet,  927.] 

The  Court.  Mme.  Tirveillot  has  filed  against  her  husband  a  petition 
for  judicial  separation,  and  to  protect  her  eventual  rights,  pending 
the  litigation,  she  has  attached  certain  property  ;  Tirveillot  moves  to 
dissolve  the  attachments.  These  questions  are  connected,  and  should 
be  considered  together. 

As  to  the  judicial  separation,  Tirveillot  pleads  to  the  jurisdiction  of 

1  Ace.  Austria  Supr.  Ct.  9  Dec.  1885  (13  Chinct,  471)  ;  Paris,  14  March,  1889 
(16  Clunet,  463). 

Where  one  spouse  is  naturalized,  the  other  retaining  his  or  her  former  allegiance, 
French  jurisprudence  is  uncertain  whether  the  forimT  may  obtain  a  valid  divorce  in 
the  state  of  his  new  allegiance.  That  he  may,  si-e  Tunis,  21  March,  1892  (19  Clunet, 
933);  Algiers,  13  Dec.  1897  (25  Clunet,  723).  That  he  may  not,  see  Nice,  9  Dec.  1896 
(21  Clunet,  333).  —  Ei>. 


496  TIRVEILLOT   V.   TIRVEILLOT.  [CHAP.   IIL 

the  court  on  the  ground  that  he  became  before  his  marriage  a  natu- 
ralized American  citizen,  and  by  the  marriage  conferred  his  own 
nationality  on  his  wife  ;  and  the  American  courts  thus  have  jurisdic- 
tion of  the  present  question.  Tirveillot  proved  that  several  years 
ago  he  left  France  to  make  his  home  in  America,  without  the  intention 
of  returning ;  and  on  his  application  he  was  by  the  competent  au- 
thorit}'  naturalized  as  an  American  citizen  ;  this  was  known  to  Mme. 
Tirveillot  when  she  maiTied  the  defendant,  January  21,  1876,  at  the 
New  York  City  Hall,  according  to  the  American  forms.  She  herself 
was  so  sure  of  her  husband's  foreign  nationality,  and  therefore  of  hers, 
that  she  set  up  a  plea  to  the  jurisdiction  when  the  defendant's  father,  in 
1878,  filed  against  her  in  this  court  a  petition  for  nullity  of  the  mar- 
riage. ...  It  is  certain  that  for  more  than  twenty  years,  with  the 
exception  of  several  journej'S  to  Europe  made  necessary  by  family 
affairs,  Tirveillot  has  always  lived  in  the  United  States  of  America, 
where  he  had  his  principal  dwelling ;  since  his  naturalization  he  has 
never  had  a  real  domicile  in  France ;  he  shows  that  it  is  possible  for 
the  petitioner  to  bring  her  suit  in  an  American  court ;  indeed,  he  has 
himself  instituted  a  suit  for  divorce  before  the  Marton  County  Court 
in  the  United  States. 

As  to  alimony :  laws  of  the  police  and  of  safety  bind  all  who  live 
in  the  countr}'.  Although  declaring  itself  without  jurisdiction  to  pro- 
nounce a  judicial  separation,  this  court  may  take  provisionally  all 
necessary  measures  for  the  safety  of  the  wife  and  the  preservation  of 
her  pi'operty.  We  ma}-  allow  alimony  sufficient  for  her  immediate 
needs  and  for  the  expenses  she  will  immediately  incur  as  a  result  of 
being  required  to  bring  her  suit  before  a  corapeteut  court. 

As  to  expenses  of  litigation :  the  prayer  for  an  allowance  of  litiga- 
tion expenses  is  closely  bound  up  with  the  principal  suit ;  it  belongs 
to  the  court  which  has  jurisdiction  of  the  substantial  suit  to  determine 
this  request. 

As  to  the  dissolution  of  attachment :  since  Mme.  Tirveillot  has  made 
a  regular  attachment  pendente  lite  by  authority  of  court,  and  it  falls 
within  the  class  of  cases  where  the  court  ma}-  authorize  provisory 
measures,  the  attachment  should  be  maintained. 

For  these  reasons,  the  suits  are  joined,  and  disposed  of  in  this  single 
judgment:  the  court  declares  itself  without  jurisdiction  to  pass  on 
Mme.  Tirveillot's  petition  for  judicial  separation  :  and  as  to  the  pro- 
visory measures,  orders  Tirveillot  to  pay  his  wife  alimony  at  the  rate 
of  three  hundred  francs  a  month,  in  advance;  maintains  the  attach- 
ment ;  and  declares  itself  incompetent  to  allow  the  petitioner  the 
expenses  of  litigation.  Orders  Mme.  Tirveillot  to  pay  the  costs  of  the 
petition  for  judicial  separation,  and  Tirveillot  to  pay  those  of  the  appli- 
cation to  dissolve  the  attachment. 


PART   II. 

REMEDIES. 


CHAPTER   IV. 

RIGHT  OF  ACTION. 


RAFAEL  V.  VERELST. 

Common   Pleas.      1776. 

[Reported  2  William  Blackstone,    1055.] 

This  case  was  tried  before  Lord  Chief  Justice  De  Grey,  by  a  special 
jury  in  London,  at  tlie  sittings  in  Michaelmas  Term,  when  they  found  a 
special  verdict  to  the  following  effect :  That  the  plaintiff  was  an  Ar- 
menian merchant  and  a  native  of  Ispahan  —  had  for  some  years 
resided  in  Bengal;  but  in  March,  1768,  and  before,  had  been  resident 
at  Fyzabad,  the  capital  of  the  province  of  Owd,  in  the  dominions  of  the 
Nabob  Sujah  al  Dowlah,  and  part  of  the  empire  of  Indostan,  for  the 
purpose  of  trading  there,  both  on  his  own  account,  and  as  agent  to  some 
English  merchants.  That  tlie  defendant  was  President  of  Bengal 
under  the  East  India  Company,  and  that  a  battalion  of  the  company's 
troops,  being  600  men  and  upwards,  were  stationed  at  Fyzabad  under 
the  command  of  Captain  Harper ;  and  another  brigade,  commanded  by 
Sir  Robert  Barker,  was  stationed  at  Illahabad,  the  then  residence  of 
the  Mogul  Shah  AUum.  That  the  battalion  at  Fyzabad  were  in  the 
pay  of  the  P2ast  India  Company,  and  had  been  stationed  there  in  1766, 
at  the  request  of  the  Nabob,  from  whom  they  received  additional  pay. 
That  in  Marcli,  1768,  the  plaintiff  was  seized  and  imprisoned  at  Fyza- 
bad (b\-  order  of  the  Nabob)  by  some  soldiers  of  Captain  Harper's 
battalion,  and  conveyed  to  Muxadabad,  the  capital  of  Bengal,  and 
there  detained  for  two  months,  till  August,  1768.  And  that  the  said 
arrest  and  imprisonment  were  by  the  means  and  procurement  of  the  de- 
fendant. That  the  Nabob  was  constitutionally  independent  of  the  East 
India  Company,  but  in  ordering  the  said  arrest  and  imi)risonment  was 
under  the  awe  and  influence  of  the  defendant,  and  acted  contrary  to  his 
own  inclination,  being  fearful  of  offending  liim.  That  the  civil  govern- 
ment of  B(!Ugal  is  carried  on  in  the  name  of  the  Nabob  of  Bengal,  but 
the  real  and  effective  powers  thereof  are  in  tlie  East  India  Company,  and 

32 


498  RAFAEL   r.    VERELST.  [cHAP.    IV. 

also  the  revenues,  paying  a  stipend  to  the  said  Nabob  of  Bengal,  and 
other  officers,  for  the  support  of  their  rank  and  dignity.  That  the  im- 
prisonment in  the  province  of  Bengal  was  by  the  procurement  of  the 
defendant,  and  was  a  continuation  of  that  made  in  the  province  of 
Owd.  And  if,  upon  tlie  whole,  the  defendant  is  guilty  of  the  whole 
trespass,  they  assess  £4000  damages  ;  if  only  of  that  in  Bengal,  then 
only  £3000  ;  if  only  of  that  in  Owd,  £1000  ;  and  conclude  to  the  judg- 
ment of  the  court.^ 

De  Grey,  C.  J.     In  the  present  case  there  are  some  things  found  by 
the  special  verdict,  which  have  not,  nor  cannot,  be  insisted  on  as  ma- 
terial in  excuse  of  the  defendant.     As,  1.  That  the  plaintiff  is  an  aUen  ; 
for  this  is  no  objection  in  personal  actions;   1  Atk.  51.     2.  That  the 
defendant  was  president  or  governor  of  Bengal ;  he  not  having  justified 
specially  under  that  authority.      3.    The  place  where  the  imprisonment 
happened  ;  viz.  the  dominions  of  a  foreign  prince.     Crimes  are  in  their 
nature  local,  and  the  jurisdiction  of  crimes  is  local.      And  so  as  to  the 
rights  of  real  property,  the  subject  being  fixed  and  immovable.     But 
personal  injuries  are  of  a  transitory  nature,  and  seqimntiir  forum  rei. 
And  though  in  all  declarations  of  trespass,  it  is  laid  '■'-contra  pacem 
Regis,''  yet  that  is  only  matter  of  form,   and   not  traversable.      But 
the  great  doubt  is,  whether,  when  an  injurious  act  is    committed    by 
color  of  juridical  authority,  or  by  the  order  of  an  absolute  prince,  such 
act  can  be  a  trespass  there,  where  it  is  done,  —  or  here,  where  it  is  not 
done.     I  shall  say  nothing  as  to  the  nature  of  the  Nabob's  government, 
or  to  the  position,  that  the  commands  of  absolute  princes  do  of  course 
legalize  their  acts.     But  I  consider  the  Nabob  as  not  being  the  actor  in 
this  case ,;  but  the  act  to  be  done,  in  point  of  law,  by  those  who  pro- 
cured or  commanded  it ;  and  in  them  it  may  doubtless  be  a  trespass. 
Sujah  Dowla  was  a  mere  instrument.      He  acted  not  from  any  motives 
of  his  own,  but  gave  way  through  awe  and  fear.     If,  in  the  doing  of  an 
act,  there  be  several  intervening  agents,  and  one  happens  not  to  be 
amenable,  will  it  be  said  that  all  the  rest  are  excused?     Suppose  it  the 
very  act  of  the  Nabob,  who  lends  himself  to  the  defendant's  will,  and 
undergoes  a  voluntary  servitude  to  his  pleasure,  —  the  accidental  cir- 
cumstances of  such  a  man  shall  not  exempt  the  rest,  who  concur  in 
the  act.      It  is  laid  down  in  Foster,  125,  that  procuring  a  felony  to  be 
committed  makes  an  accessory  to  the  felony  ;  and  I  take  it  to  be  a  set- 
tled rule,  that  whatever  makes  an   accessory  in  felony  will  make  a 
principal  in  trespass.     Since,  therefore,  the  jury  have  found  the  pro- 
curement of  the  defendant,  it  follows  that  he  is  liable  as  a  principal,  for 
this  trespass. 

Gould,  J.,  of  the  same  opinion,  and  cited  the  Earl  of  Salop's  case, 
9  Rep.  42. 

Blackstone,  J.,  of  the  same  opinion.     The  finding  of  this  verdict 
has  removed  all  former  doubts.     It  not  only  finds  the  imprisonment  to 
have  been  committed  by  the  means  and  procurement,  but  by  the  com- 
i  Arguments  of  counsel  are  omitted. — Ed. 


CHAP.    IV.]  MOSTYN    V.    FABRIGAS.  499 

mand,  nay,  ever,  the  compulsion  of  the  defendant.  The  Nabob  acted 
"  contrar}'  to  his  own  inclination,"  through  fear  of  offending  the  de- 
fendant, and  under  his  awe  and  influence.  After  such  a  finding,  there 
is  no  room  for  argument.  The  Nabob  is  a  mere  machine,  —  an  instru- 
ment and  engine  of  the  defendant. 

Nares,  J.,  of  the  same  opinion,  and  cited  Salk.  636,  640  ;  2  Cro. 
130 ;  Carthew,  66. 

Judgment  for  the  plaintiff  for  the  xohole  damages. 


MOSTYN  V.   FABRIGAS. 
King's  Bknch.     1775. 

[Reported  Covjpers  Reports,  161.] 

This  was  an  action  of  trespass,  brought  in  the  Court  of  Common 
Pleas  by  Anthon}'  Fabrigas  against  John  Mostyn,  for  an  assault  and 
false  imprisonment;  in  which  the  plaintiff  declared,  that  the  defendant 
on  the  first  of  September,  in  the  year  1771,  with  force  and  arms,  &c., 
made  an  assault  upon  the  said  Anthon}-,  at  Minorca  (to  wit)  at  Lon- 
don aforesaid,  in  the  parish  of  St.  Mary  le  Bow,  in  the  ward  of  Cheap, 
and  beat,  wounded,  and  ill-treated  him,  and  then  and  there  imprisoned 
him,  and  kept  and  detained  him  in  prison  there  for  a  long  time  (to 
wit)  for  the  space  of  ten  months,  without  an^'  reasonable  or  probable 
cause,  contrary  to  the  laws  and  customs  of  this  realm,  and  against 
the  will  of  the  said  Anthony,  and  compelled  him  to  depart  from 
Minorca  aforesaid,  where  he  was  then  dwelling  and  resident,  and 
carried,  and  caused  to  be  carried,  the  said  Anthony  from  Minorca 
aforesaid,  to  Carthagena,  in  the  dominions  of  the  King  of  Spain,  t&c, 
to  the  plaintiff's  damage  of  £10,000. 

The  defendant  pleaded  1st.  Not  guilt}- ;  upon  which  issue  was 
joined.  2dly.  A  special  justification,  that  the  defendant  at  the  time, 
&c. ,  and  long  before,  was  governor  of  the  said  island  of  Minorca, 
and  during  all  that  time  was  invested  with,  and  did  exercise  all  the 
powers,  privileges,  and  authorities,  civil  and  military,  belonging  to 
the  government  of  the  said  island  of  Minorca,  in  parts  beyond  the 
seas  ;  and  the  said  Antliony,  before  the  said  time  when,  &c.  (to  wit) 
on  the  said  first  of  September,  in  the  year  aforesaid,  at  the  island  of 
Minorca  aforesaid,  was  guilt}'  of  a  riot,  and  was  endeavoring  to 
raise  a  mutiny  among  the  inhabitants  of  the  said  island,  in  breach  of 
the  peace :  wliereupon  the  said  John  so  being  governor  of  the  said 
island  of  Minorca  as  aforesaid,  at  the  said  time,  when,  «&c.,  in  order 
to  preserve  the  peace  and  government  of  tlie  said  island,  was  obliged 
to,  and  did  then  and  there  order  the  said  Anlhoiiy  to  be  banisiied 
from  the  said  island  of  Minorca ;  and  in  order  to  banish  the  said 
Antliony,  did  then  and  there  gently  lay  hands  upon  the  said  Antliony, 
and  did  then  and  there  seize  and  arrest  him,  and  did  keep  and  detain 


500  MOSTYN   V.    FABRIGAS.  [CHAP.   IV. 

the  said  Anthony,  before  he  could  be  banished  from  the  said  island, 
for  a  short  space  of  time  (to  wit)  for  the  space  of  six  days,  then  next 
following ;  and  afterwards,  to  wit,   on  the  7th  of  September,  in  the 
year  aforesaid,  at  Minorca  aforesaid,  did  carry,  and  cause  to  be  car- 
ried, the  said  Anthony,  on  board  a  certain  vessel,  from  the  island  of 
Minorca  aforesaid,  to  Carthagena  aforesaid,  as  it  was  lawful  for  him 
to  do,  for  the  cause  aforesaid ;   which  are  the  same  making  the  said 
assault  upon  the  said  Anthony,  in  the  first  count  of  the  said  declaration 
mentioned,  and  beating,  and  ill-treating  him,  and  imprisoning  him,  and 
keeping  and  detaining  him  in  prison  for  the  said  space  of  time,  in  the 
said  first  count  of  the  said  declaration  mentioned,  and  compelhng  the 
said   Anthony  to  depart  from  Minorca  aforesaid,  and   carrying  and 
causing  to  be  carried  the  said  Anthony  from  Minorca  to  Carthagena, 
in  the  dominions  of  the  King  of  Spain,  whereof  the  said  Anthony  has 
above  complained  against  him,  and  this  he  is  ready  to  verify ;  where- 
fore he  prays  judgment,   &c.,  without  this,  that  the  said  John  was 
guilty  of  the  said  trespass,  assault,  and  imprisonment,  at  the  parish  of 
St.  Mary  le  Bow,  in  the  ward  of  Cheap,  or  elsewhere,  out  of  the  said 
island    of  Minorca    aforesaid.     Replication    de    injuria    sua   propria 
absq.  tali  causa.     At  the  trial  the  jury  gave  a  verdict  for  the  plaintiflT, 
upon  both  issues,  with  £3000  damages,   and  £90  costs.^ 

Lord  Mansfield.  .  .  .  The  next  objection  which  has  been  made  is 
a  general  objection,  with  regard  to  the  matter  arising  abroad ;  namely, 
that   as  the  cause   of  action  arose  abroad,  it  cannot  be  tried  here  in 

England. 

There  is  a  formal  and  a  substantial  distinction  as  to  the  locality  of 
trials.  I  state  them  as  different  things  :  the  substantial  distinction  is, 
where  the  proceeding  is  in  rem,  and  where  the  eflTect  of  the  judgment 
cannot  be  had,  if  it  is  laid  in  a  wrong  place.  That  is  the  case  of  all 
ejectments,  where  possession  is  to  be  delivered  by  the  sheriff  of  the 
county ;  and  as  trials  in  England  are  in  particular  counties,  the  ofl^cers 
are  county  officers ;  therefore  the  judgment  could  not  have  effect,  if 
the  action  was  not  laid  in  the  proper  county. 

With  regard  to  matters  that  arise  out  of  the  realm,  there  is  a  sub- 
stantial distinction  of  locality  too  ;  for  there  are  some  cases  that  arise 
out  of  the  realm,  which  ought  not  to  be  tried  anywhere  but  in  the 
country  where  they  arise;  as  in  the  case  alluded  to,  by  Sergeant 
Walker:  if  two  persons  fight  in  France,  and  both  happening  casually 
to  be  here,  one  should  bring  an  action  of  assault  against  the  other,  it 
might  be  a  doubt  whether  such  an  action  could  be  maintained  here : 
because,  though  it  is  not  a  criminal  prosecution,  it  must  be  laid  to  be 
against  the  peace  of  the  King ;  but  the  breach  of  the  peace  is  merely 
local,  though  the  trespass  against  the  person  is  transitory.  Therefore, 
without  giving  any  opinion,  it  might  perhaps  be  triable  only  where 
both  parties  at  the  time  were  subjects.  So  if  an  action  were  brought 
1  Only  so  much  of  the  case  as  iuvolves  the  quebtion  of  a  right  of  action  is 
given.  —  Er 


CHAP.  IV.]  MOSTYN  V.   FABRIGAS.  501 

relative  to  an  estate  iu  a  foreign  country,  where  the  question  was  a 
matter  of  title  only,  and  not  of  damages,  there  might  be  a  solid 
distinction  of  locality. 

But  there  is  likewise  a  formal  distinction,  which  arises  from  the 
mode  of  trial :  for  trials  in  England  being  by  jury,  and  the  kingdom 
being  divided  into  counties,  and  each  county  considered  as  a  separate 
district  or  principality,  it  is  absolutely  necessary  that  there  should  be 
some  county  where  the  action  is  brought  in  particular,  that  there 
may  be  a  process  to  the  sheritT  of  that  county,  to  bring  a  jury  from 
thence  to  try  it.  This  matter  of  form  goes  to  all  cases  that  arise 
abroad :  but  the  law  makes  a  distinction  between  transitory  actions 
and  local  actions.  If  the  matter  which  is  the  cause  of  a  transitor}- 
action  arises  within  the  realm,  it  ma3-  be  laid  in  any  county,  the 
place  is  not  material ;  and  if  an  imprisonment  in  Middlesex,  it  may 
be  laid  in  Surrey-,  and  though  proved  to  be  done  in  Middlesex,  the 
place  not  being  material,  it  does  not  at  all  prevent  the  plaintiff  recov- 
ering damages  :  the  place  of  transitory  actions  is  never  material,  except 
where  by  particular  acts  of  parliament  it  is  made  so ;  as  in  the  case 
of  churchwardens  and  constables,  and  other  cases  which  require  the 
action  to  be  brought  in  the  county.  The  parties,  upon  sutticient 
ground,  have  an  opportunity  of  applying  to  the  court  in  time  to  change 
the  venue;  but  if  they  go  to  trial  without  it,  that  is  no  objection.  So 
all  actions  of  a  transitor}-  nature  tliat  arise  abroad  ma}-  be  laid  as 
happening  in  an  English  county.  I>ut  there  are  occasions  which 
make  it  absolutely  necessary  to  state  in  the  declaration,  that  the  cause 
of  action  really  happened  abroad  ;  as  in  the  case  of  specialties,  where 
the  date  must  be  set  forth.  If  the  declaration  states  a  specialty 
to  have  been  made  at  Westminster  in  Middlesex,  and  upon  producing 
the  deed,  it  bears  date  at  Bengal,  the  action  is  gone  ;  because  it  is 
such  a  variance  between  the  deed  and  the  declaration  as  makes  it 
appear  to  be  a  different  instrument.  There  is  some  confusion  in  the 
books  upon  the  stat.  6  Ric.  2.  But  I  do  not  put  the  objection  upon 
that  statute.  I  rest  it  singly  upon  this  ground.  If  the  true  date  or 
description  of  the  bond  is  not  stated,  it  is  a  variance.  But  the  law 
has  in  that  case  invented  a  fiction  ;  and  has  said,  the  party  shall  first 
set  out  the  description  truly,  and  then  give  a  venue  only  for  form,  and 
for  the  sake  of  trial,  by  a  videlicet,  in  the  county  of  Middlesex,  or 
any  other  county.  But  no  judge  ever  thouglit  tliat  when  tlie  declara- 
tion said  ill  Fort  St.  George,  viz.  in  Cheapside,  that  the  plaintiff  meant 
it  was  in  Cheapside.  It  is  a  fiction  of  form  ;  every  country  has  its 
forms,  which  are  invented  for  the  furtherance  of  justice  ;  and  it  is  a 
certain  rule,  that  a  fiction  of  law  shall  never  be  contradicted  so  as  to 
defeat  the  end  for  which  it  was  invented,  ]>ut  for  everv  other  purpose 
it  may  be  contradicted.  Now  the  fiction  invented  in  these  cases  is 
barely  for  the  mode  of  trial ;  to  every  other  purpose,  therefore,  it 
shall  be  contradicted,  but  not  for  the  purpose  of  saying  tlio  cause  shall 
not  be  tried.     So  in  the  case  that  was  long  agitated  and  finally  deter- 


502  MOSTYN    V.   FABEIGAS.  [CITAP.   IV. 

mined  some  jears  ago,  upon  a  fiction  of  the  teste  of  writs  taken  out  in 
the  vacation,  vviiich  bear  date  as  of  the  last  day  of  the  term,  it  was 
held,  that  the  fiction  shall  not  be  contradicted  so  as  to  invalidate  the 
writ,  b}'  averring  that  it  issued  on  a  day  in  the  vacation  ;  because  the 
fiction  was  invented  for  the  furtherance  of  justice,  and  to  make  the  writ 
appear  right  in  form.  But  where  the  true  time  of  suing  out  a  latitat  is 
material,  as  on  a  plea  of  non  assumpsit  infra  sex  annos,  there  it  ma}' 
be  shown  that  the  latitat  was  sued  out  after  the  six  years  notwithstand- 
ing the  teste.  I  am  sorry  to  observe,  that  some  sayings  have  been 
alluded  to,  inaccurately  taken  down,  and  improperly  printed,  where 
the  court  has  been  made  to  say,  that  as  men  they  have  one  way  of 
thinking,  and  as  judges  they  have  another,  which  is  an  absurdity  ; 
whereas  in  fact  tiiey  only  meant  to  support  the  fiction,  .   .   . 

Can  it  be  doubted,  that  actions  may  be  maintained  here,  not  only 
upon  contracts,  which  follow  the  persons,  but  for  injuries  done  by 
subject  to  subject ;  especially  for  injuries  where  the  whole  that  is 
pra3-ed  is  a  reparation  in  damages,  or  satisfaction  to  be  made  by 
process  against  the  person  or  his  efl'ects,  within  the  jurisdiction  of 
the  court  ?  We  know  it  is  within  every  day's  experience.  I  was 
embarrassed  a  great  while  to  find  out  whether  the  counsel  for  the 
plaintiff  reall}'  meant  to  make  a  question  of  it.  In  sea  batteries  the 
plaintiff  often  lays  the  injury  to  have  been  done  in  Middlesex,  and 
then  proves  it  to  be  done  a  thousand  leagues  distant  on  the  other 
side  of  the  Atlantic.  There  are  cases  of  offences  on  the  high  seas, 
where  it  is  of  necessity  to  lay  in  the  declaration,  that  it  was  done 
upon  the  high  seas  ;  as  the  taking  a  ship.  There  is  a  case  of  that 
sort  occurs  to  my  memory  ;  the  reason  I  remember  it  is,  because 
there  was  a  question  about  the  jurisdiction.  There  likewise  was  an 
action  of  that  kind  before  Lord  Chief  Justice  Lee,  and  another  before 
me,  in  which  I  quoted  that  determination,  to  show,  that  when  the 
Lords  Commissioners  of  prizes  have  given  judgment,  that  is  conclu- 
sive in  the  action  ;  and  likewise  when  they  have  given  judgment,  it 
is  conclusive  as  to  the  costs,  whether  they  have  given  costs  or  not. 
It  is  necessary  in  such  actions  to  state  in  the  declaration,  that  the  ship 
was  taken,  or  seized  on  the  high  seas,  videlicet,  in  Cheapside.  But 
it  cannot  be  seriously  contended  that  the  judge  and  jury  who  try  the 
cause,  fancy  the  ship  is  sailing  in  Cheapside  :  no,  the  plain  sense  of 
it  is,  that  as  an  action  lies  in  P^ngland  for  the  ship  which  was  taken 
on  the  high  seas,  Cheapside  is  named  as  a  venue  ;  which  is  saying 
no  more,  than  tliat  the  party  prays  the  action  may  be  tried  in  Lon- 
rlon.  But  if  a  party  were  at  liberty  to  oflfer  reasons  of  fact  contrar}- 
to  the  truth  of  the  case,  there  would  be  no  end  of  the  embarrass- 
ment. At  the  last  sittings  there  were  two  actions  brought  by  Arme- 
nian merchants,  for  assaults  and  trespasses  in  the  East  Indies,  and  they 
are  very  strong  authorities.  Serjeant  Glj'nn  said,  that  the  defendant 
Mr.  Verelst  was  very  ably  assisted  :  so  he  was,  and  by  men  who 
would  have  taken  the  objection,  if  they  had  thought  it  maintainable. 


CHAP.    IV.]  MOSTYN   V.    FABRIGAS.  503 

aud  the  actions  caiue  on  to  be  tried  after  this  case  had  been  argued 
once ;   yet  the    counsel   did   not    think  it  could    be  supported.     Mr. 
Verelst  would  have   been  glad  to  make  the  objection  ;   he  would  not 
have  left  it  to  a  jury,  if  he  could  have  stopped  them  short,  and  said, 
you  shall  not  try  the  actions  at  all.     I  have  had  some  actions  before 
me,  rather  going  further  than  these  transitory  actions;   that  is,  going 
lo  cases  which  in  England  would  be   local  actions  :    I  remember  one, 
I  think  it  was  an  action   brought  against  Captain  Gambler,  who  by 
order  of  Admiral  Boscawen  had  pulled  down  the  houses  of  some  sutlers 
who  supplied  the  navy  and  saiU)rs  with  spirituous  liquors  ;  and  whether 
the  act  was  right  or  wrong,  it  was  certainly  done  with  a  good  intention 
on  the  part  of  the  admiral,  for  the  health  of  the  sailors  was  affected  by- 
frequenting  them.     They  were  pulled  down  :    the  captain  was  inatten- 
tive enough  to  bring  the  sutler  over  in  his  own   ship,  who  would  never 
have  got  to  England  otherwise  ;    aud  as  soon  as  he  came   here  he  was 
advised   that   he   should   bring   an   action    against   the   captain.     He 
brought  his  action,  and  one  of  the  counts  in  tlie  declaration  was  for 
pulling  down  the   houses.     The  objection  was  taken  to  the  count  for 
pulling  down  the  houses  ;    and  the  case  of  Skinnei-  and  the  East-India 
company  was  cited  in  support  of  the  objection.     On  the  other  side, 
they  produced  from  a  manuscript  note  a  case  before  Lord  Chief  Justice 
Eyre,  where  he  overruled  the  objection  ;    and  I  overruled    the  objec- 
tion upon  this  principle,  namely,  that  the  reparation  here  was  personal, 
and  for  damages,  and  that  otherwise  there  would   be  a  failure  of  jus- 
tice ;   for  it  was  upon  the  coast  of  Nova  Scotia,  where  there  were   no 
regular  courts  of  judicature:    but  if  there  had  been.  Captain  Gambler 
might  never  go  there  again ;   and,  therefore,  the  reason  of  locality  in 
such  an  action  in   England  did  not  hold.     I  quoted  a  case  of  an  injury 
of  tiiat  sort  in  the  East  Indies,  where  even  in  a  court  of  equity  Lord 
Ilardwicke  had  directed  satisfaction  to  be  made  in  damages  :    that  case 
before  Lord  Ilardwicke  was  not  much  contested,  but  this  case  before 
me  was  fully  and  seriously  argued,  and  a  thousand   pounds  damages 
given  against  Captain  Gamhier.     I  do  not  quote  this  for  the  authority 
of  my  opinion,  because  that  opinion  is  very  likely  to  be  erroneous,  but 
I  quote  it  for  this  reason ;    a  thousand  pounds  damages  and  the  costs 
were  a  considerable  sum.     As  the  captain   had  acted   by  the  orders  of 
Admiral  Boscawen,  the   representatives  of  the  admiral  defended  the 
cause,   and  paid   the   damages  and  costs   recovered.     The   case   was 
favorable ;    for   what   the    admiral    did    was   certainly  well   intended  •, 
and  yet  there   was   no   motion   for  a  new  trial. 

I  recollect  another  cause  that  came  on  before  me  ;  which  was  the 
case  of  Admiral  Palliser.  There  the  very  gist  of  the  action  was  local . 
It  was  for  destroying  fishing  liuts  upon  the  Labrador  coast.  After  the 
treaty  of  Paris,  the  Canadians  early  in  the  season  (!rected  huts  for 
fishing;  and  by  that  means  got  an  advantage,  by  beginning  oailier, 
of  the  fishermen  wlio  cnme  from  I'Liighiiid.  It  was  a  nice  (luestioii 
U[)Oii   the  riL;lit  "f    the  ('.•iiKi(li:ni-<.      I  lowcvcr,  t lu'  admiral   fi'om  gcnei'ul 


504  MATTHAEI    V.    GALITZIN.  [CHAP.    IV. 

principles  of  policy  ordered  these  huts  to  be  destroyed.  The  cause 
went  on  a  great  way.  The  defendant  would  have  stopped  it  short  at 
once,  if  he  could  have  made  such  an  objection,  but  it  was  not  made. 
There  are  no  local  courts  among  the  Esquimaux  Indians  upon  that 
part  of  the  Labrador  coast ;  and  therefore  whatever  injur3'  had  been 
done  there  by  any  of  the  King's  officers  would  have  been  altogether 
without  redress,  if  the  objection  of  localit}'  would  have  held.  The 
consequence  of  that  circumstance  shows,  that  where  the  reason  fails, 
even  in  actions  which  in  England  would  be  lecal  actions,  ^-et  it  does 
not  hold  to  places  beyond  the  seas  within  the  King's  dominions. 
Admiral  Palliser's  case  went  oif  upon  a  proposal  of  a  reference,  and 
ended  by  an  award.  But  as  to  transitory  actions,  there  is  not  a  color 
of  doubt  but  that  every  action  that  is  transitory-  may  be  laid  in  any 
count}'  in  England,  though  the  matter  arises  bej-ond  the  seas  ;  and 
when  it  is  absolutely  necessary  to  lay  the  truth  of  the  case  in  the 
declaration,  there  is  a  fiction  of  law  to  assist  you,  and  you  shall  not 
make  use  of  the  truth  of  the  case  against  that  fiction,  but  you  may 
make  use  of  it  to  every  other  purpose.  I  am  clearly  of  opinion  not 
only  against  the  objections  made,  but  that  there  does  not  appear  a 
question  upon  which  the  objections  could  arise. 

The  three  other  judges  concurred. 

Per  Cur.  Judgment  affirmed.^ 


MATTHAEI  v.   GALITZIN. 

Chancery.     1874. 

[Reported  Law  Reports,  18  Equity,  340.] 

Sir  R.  Malins,  V.  C.  I  think  it  is  clear  upon  the  face  of  the 
bill  that  there  is  no  right  against  the  company  if  there  is  none  against 
the  Princess  Galitzin.  They  are  made  parties  as  stakeholders,  and  it 
is  said  they  are  bound  to  pay  the  princess  three-fifths,  subject  only  to 
the  liability  of  paying  the  ten  per  cent  commission  to  the  plaintiff. 

If,  therefore,  the  bill  fails  against  the  princess,  it  must  necessarily 
fail  as  against  the  company.  That  would  be  the  case  at  the  hearing  of 
the  cause.  The  bill,  therefore,  must  be  regarded  as  a  bill  against  the 
princess.  What,  then,  are  the  facts  ?  Here  is  a  case  in  which  the 
husband  of  the  plaintiff,  who  was  a  foreigner,  entered  into  a  contract 
with  another  foreigner  respecting  property  situate  in  a  foreign  country. 
What  right  in  such  a  case  can  there  be  to  sue  here  ?  Can  any  one 
sue  in  the  courts  in  this  country  in  matters  relating  to  foreign  property, 
the  contract  being  foreign,  and  both  parties  foreign  subjects  ? 

1  Ace.  Roberts  v.  Dinsmuir,  75  Cal.  203,  16  Pac.  782 ;  Watts  v.  Thomas,  2  Bibb, 
458  ;  Mason  v.  Warner,  31  Mo.  .508  ;  Henry  v.  Sargent,  13  N.  H.  321 ;  Ackerson  v. 
E.  R.    R.,   31   N.   J.    L.   309  ;    Lister  v.   Wright,   2  Hill,  320.—  En. 


CHAP.    IV.]  MATTHAEI    V.    GALITZIN.  505 

Certainly,  according  to  mv  view,  it  is  no  part  of  the  business  of  this 
court  to  settle  disi)utes  between  foreigners.  There  must  be  some 
cause  for  giving  jurisdiction  to  the  tribunals  of  this  country  ;  either 
the  property  or  the  parties  must  be  here,  or  there  must  be  something 
to  bring  the  subject-matter  within  the  cognizance  of  this  court.  This 
is  the  case  of  a  plaintiff  who,  though  now  stated  to  be  living  at  the 
Charing  Cross  Hotel,  is  resident  at  Antwerp ;  and  it  is  admitted  she  is 
a  foreign  subject  suing  another  foreign  subject.  If  I  were  to  overrule 
the  demurrer  and  allow  the  suit  to  proceed,  it  would  under  such  cir- 
cumstances be  useless.  It  would  be  a  grievous  hardship  if  a  foreigner 
residing  in  a  foreign  country,  and  having  property  in  that  country, 
where  there  are  tribunals  in  which  the  rights  of  subjects  of  that  country 
can  be  asserted,  could  be  dragged  into  the  courts  of  this  country  and 
be  subjected  to  the  annoyance  of  all  the  proceedings  in  these  courts. 
It  is  certainly  a  jurisdiction  which  ought  not  to  be  exercised  except  in 
cases  of  absolute  necessity.  Then  arises  the  question  whether  the 
plaintiff  is  entitled  to  any  remedy  against  the  princess,  and  if  she  is 
not,  then  she  is  not  entitled  as  against  the  company. 

All  the  cases  cited  go  upon  the  same  principle  —  such  as  Blake  v. 
Blake,  18  W.  R.  944;  Norris  v.  Chambers,  29  Beav.  246,  3  D.  F.  &  J. 
583  ;  and  Cookney  v.  Anderson,  31  Beav.  452,  1  D.  J.  &  S.  365  —  and 
they  show  that  you  cannot  sue  a  foreigner  in  this  country,  unless  the 
parties  are  resident  here  or  the  property  is  situate  in  this  country. 

I  find  my  opinion  in  Blake  v.  Blake,  18  W.  R.  944,  follows  those 
authorities.  That  was  a  case  in  which  the  plaintiff  was  a  foreigner 
resident  at  Boulogne,  and  the  defendant  was  an  Irishman,  for  that 
purpose  also  a  foreigner,  and  resident  in  Ireland,  for  the  sale  of  some 
land  in  Ireland,  and  the  contract  was  entered  into  at  Boulogne.  A 
receiver  of  the  property  had  been  appointed  by  the  Court  of  Chancery 
in  Ireland,  and  a  bill  was  filed  in  this  court  asking  that  certain  deeds 
relating  to  the  property  might  be  ordered  to  be  given  up.  I  find  that 
I  made  these  observations  in  that  case  :  I  had  no  doubt  that  when 
persons  who  were  resident  here  entered  into  a  contract,  though 
the  subject-matter  of  the  contract  was  abroad,  yet  that  the  contract 
miglit  be  sustained  ;  but  when  neither  party  had  anything  to  do  with 
this  countr}-,  and  the  subject-matter  was  not  situated  here,  as  in  that 
case,  then,  if  the  plea  were  overruled,  the  court  might  as  well  be 
called  upon  to  interfere  in  the  affairs  of  all  countries.  Two  French- 
men might  come  here  to  have  their  disputes  decided.  Ireland  for  this 
purpose  was  a  foreign  country.  They  had  a  Court  of  Chancery  of 
their  own  ;  and  though  it  had  been  said  it  was  not  a  suit  to  recover 
land,  yet  the  effect  of  it  was  to  recover  an  estate.  I  there  stated  that 
the  case  was,  in  my  opinion,  governed  by  Cookuey  v.  Anderson,  31 
Beav.  452,  1  D.  J.  &  S.  365,  and  the  circumstances  of  the  land  being 
in  Ireland,  and  the  defendant  resident  in  tliat  country,  were  sullicicnt 
to  show  that  the  bill  ouglit  not  to  have  been  filed  in  this  court.  So  I 
say  in   this  case,  that  neither  the   plaintiff    nor  Uie   defendant    being 


506  BRITISH,  ETC.  CO.  V.  COMPANHIA  DE  MOCAMBIQUE.       [CHAP,    IV. 

resident  in  this  country,  and  the  subject-matter  not  being  situate  here, 
it  is  a  case  which  this  court  has  nothing  to  do  with,  and  the  demurrers 
must  be  allowed. 

The  last  two  cases  which  were  cited  —  Maunder  v.  Lloyd,  2  J.  &  H. 
718,  and  Hendrick  v.  Wood,  9  W.  R.  588  —  seem  to  have  no  applica- 
tion ;  but  as  far  as  they  go  they  are  not  authorities  in  favor  of  the 
plaintiff,  for  though  the  parties  were  foreigners,  the  property  was 
partlj'  in  this  country. 

My  opinion  is,  therefore,  that  a  foreigner  resident  abroad  cannot 
bring  another  foreigner  into  this  court  respecting  property  with  which 
this  court  has  nothing  to  do.  This  court  is  not  to  be  made  a  vehicle 
for  settling  disputes  arising  between  parties  resident  abroad. 

If  the  plaintiff  asks  for  leave  to  amend,  it  is  not  a  case  in  which  I 
should  give  leave. 

It  was  stated  that  leave  to  amend  was  not  asked,  and  the  demurrers 
were,  therefore,  simply  allowed.^ 


BRITISH  SOUTH  AFRICAN  CO.  v.  COMPANHIA  DE 
MOCAMBIQUE. 

House  of   Lords.     1893. 

[Urported  [1893]  Appeal  Cases,  602.] 

In  an  action  by  the  respondents  against  the  appellants  the  plaintiffs 
by  their  statement  of  claim  alleged  {inter  alia)  that  the  plaintiff  com- 
pany was  in  possession  and  occupation  of  large  tracts  of  lands  and 
mines  and  mining  rights  in  South  Africa  ;  and  that  the  defendant  com- 
panv  by  its  agents  wrongfulh'  broke  and  entered  and  took  possession 
of  the  said  lands,  mines,  and  mining  rights,  and  ejected  the  plaintiff 
company,  its  servants,  agents,  and  tenants  therefrom  ;  and  also  took 
possession  of  some  of  the  plaintiffs'  personal  property  and  assaulted 
and  imprisoned  some  of  the  plaintiffs. 

The  statement  of  defence  in  paragraph  1  —  as  to  so  much  of  the 
statement  of  claim  as  alleged  a  title  in  the  plaintiff  compan}-  to  the 
lands,  mines,  and  mining  rights,  and  alleged  that  the  defendants  by 
their  agents  wrongfullv  broke  and  entered  the  same,  and  claimed  a  dec- 
laration of  title  and  an  injunction  —  whilst  denying  the  alleged  title 
and  the  alleged  wrongful  acts,  said  that  the  lands,  mines,  and  mining 
rights  were  situate  abroad,  to  wit  in  South  Africa,  and  submitted  that 
the  court  had  no  jurisdiction  to  adjudicate  upon  the  plaintiffs'  claim. 

In  paragraph  2  of  the  reply  the  plaintiffs  objected  that  paragraphs 
1  and  9  of  the  defence  were  bad  in  law,  and  alleged  that  paragraph  1 

1  Ace.  Brinley  v.  Avery,  Kirby,  25  ;  Lorraine  v.  Tourtaillier  (Brussels,  24  Mar. 
1877),  5  Chuiet,  511. —  Ed 


CHAP.    IV.]      BRITISH,  ETC.  CO.  V.  CDMrANHIA  DE  MOCAMBIQUE.  507 

aid  not  show  that  there  was  any  court  other  than  that  in  which  this 
action  was  brought  having  jurisdiction  to  adjudicate  on  the  plaintiffs' 
said  claims  ;  and  the  plaintiffs  further  allege  that  there  was  no  compe- 
tent tribunal  having  jurisdiction  to  adjudicate  on  the  said  claims  in  the 
countrv  where  the  acts  complained  of  were  committed  ;  and  that  the 
acts  complained  of  were  illegal  according  to  the  laws  of  the  country 
where  the  same  were  committed. 

An  order  having  been  made  for  the  disposal  of  the  points  of  law  thus 
raised  by  the  pleadings,  the  Queen's  Bench  Division  (Lawrance  and 
Wright,  JJ.)  made  an  order  that  judgment  be  entered  for  the  defend- 
ants^'dismissing  the  action  so  far  as  it  claimed  a  declaration  of  title  to 
land,  and  also  so  far  as  it  claimed  damages  or  an  injunction  in  relation 
to  trespass  to  land. 

The  Court  of  Appeal  (Fry  and  Lopes,  L.JJ.  ;  Lord  Esher,  M.  R., 
dissenting)  declared  that  Her  Majesty's  Supreme  Court  has  jurisdiction 
to  entertain  the  claim  for  damages.  The  defendants  appealed  against 
this  order. ^ 

Lord  Herschell,  L.  C.  The  distinction  between  matters  which  are 
transitory  or  personal  and  those  which  are  local  in  their  nature,  and  the 
refusal  to  exercise  jurisdiction  as  regards  the  latter  where  they  occur 
outside  territorial  limits,  is  not  confined  to  the  jurisprudence  of 
this  country.  Story,  in  his  work  on  the  Conflict  of  Laws  (s.  551), 
after  stating  that  by  the  Roman  law  a  suit  might  in  many  cases  be 
brought,  either  where  property  was  situate  or  where  the  party  sued  had 
his  domicile,  proceeds  to  say  that  "even  in  countries  acknowledging  the 
Roman  law  it  has  become  a  very  general  principle  that  suits  i7i  rem 
should  be  brought  where  the  property  is  situate  ;  and  this  principle  is 
applied  with  almost  universal  approbation  in  regard  to  immovable  prop- 
erty. The  same  rule  is  applied  to  mixed  actions,  and  to  all  suits  which 
touch  the  realty." 

In  section  553,  Story  quotes  the  following  language  of  Vattel : 
*'The  defendant's  judge"  (tliat  is,  the  competent  judge),  says  he,  "is 
the  judge  of  the  place  where  the  defendant  has  his  settled  abode,  or 
the  judge  of  the  place  where  the  defendant  is  when  any  sudden  difli- 
culty  arises,  provided  it  does  not  relate  to  an  estate  in  land,  or  to  a 
riglit  annexed  to  such  an  estate.  In  such  a  case,  as  property  of  this 
kind  is  to  be  held  according  to  the  laws  of  the  country  where  it  is  sit- 
uated, and  as  the  right  of  granting  it  is  vested  in  the  ruler  of  the  coun- 
try, controversies  relating  to  such  property  can  only  be  decided  in  the 
State  in  which  it  depends."  He  adds,  in  the  next  section  :  "It  will  be 
l)erceived  that  in  many  respects  the  doctrine  here  laid  down  coincides 
with  that  of  the  common  law.  It  has  been  already  stated  that  by  the 
common  law,  personal  actions,  being  transitory,  may  be  brought  in  any 
place  where  the  party  defendant  can  be  found  ;  that  real  actions  nuist  be 
brought  in  the  forum  rei  sita'. ;  and  that  mixed  actions  are  properly  rc- 
1  The  statement  of  facts  has  been  abridged,  and  arguments  and  part  of  the  opinion 
omitted. — Ed. 


508         BRITISH,  ETC.  CO.  V.  COMPANHIA  DE  MOOAMBIQUE.       [CHAP.   IV. 

ferable  to  the  same  jurisdiction.  Among  the  latter  are  actions  for  tres- 
passes and  injuries  to  real  property  which  are  deemed  local ;  so  that 
the}'  will  not  lie  elsewhere  than  in  the  place  rei  sitce." 

The  doctrine  laid  down  b}'  foreign  jurists,  w'hich  is  said  by  Story  to 
coincide  in  many  respects  with  that  of  our  common  law,  obviously  had 
relation  to  the  question  of  jurisdiction,  and  not  to  any  technical  rules 
determining  in  what  part  of  a  country  a  cause  was  to  be  tried.  Story 
was  indeed  regarded  by  one  of  the  learned  judges  in  the  court  below 
(Lopes,  L.  J.,  [1892]  2  Q.  B.  420)  as  sanctioning  the  view  that  our 
rules  with  regard  to  venue  in  the  case  of  local  actions  offered  the  only 
obstacle  to  the  exercise  of  jurisdiction  in  actions  of  trespass  to  real 
property.  The  passage  relied  on  is  as  follows  (s.  .554)  :  "  Lord  Mans- 
field and  Lord  Chief  Justice  Eyre  held  at  one  time  a  different  doctrine, 
and  allowed  suits  to  be  maintained  in  England  for  injuries  done  b}' 
pulling  down  houses  in  foreign  unsettled  regions,  nameh',  in  the  desert 
coasts  of  Nova  Scotia  and  Labrador.  But  this  doctrine  has  been 
since  overruled  as  untenable  according  to  the  actual  jurisprudence  of 
England,  however  maintainable  it  might  be  upon  general  principles  of 
international  law,  if  the  suit  were  for  personal  damages  only." 

By  the  words  ''  untenable  according  to  the  actual  jurisprudence  of 
England,"  I  do  not  think  Story  was  referring  to  the  rule  which  in  this 
country  regulated  the  place  of  trial  in  the  case  of  local  actions.  Nor 
am  I  satisfied  that  either  Lord  Mansfield  or  Story  would  have  regarded 
an  action  of  trespass  to  land  as  a  suit  for  personal  damages  only,  if  the 
title  to  the  land  were  at  issue  ;  and  in  order  to  determine  whether  there 
was  a  right  to  damages  it  was  necessary  for  the  court  to  adjudicate 
upon  the  conflicting  claims  of  the  parties  to  the  real  estate.  In  both 
the  cases  before  Lord  Mansfield,  as  I  understand  them,  no  question  of 
title  to  real  property  was  in  issue.  The  sole  controversy  was,  whether 
the  British  officers  sued  were,  under  the  circumstances,  justified  in  in- 
terfering with  the  plaintiffs  in  their  enjoyment  of  it. 

The  question  what  jurisdiction  can  be  exercised  by  the  courts  of  any 
country  according  to  its  municipal  law  cannot,  I  think,  be  conclusively 
determined  by  a  reference  to  principles  of  international  law.  No  nation 
can  execute  its  judgments,  whether  against  persons  or  movables  or  real 
property,  in  the  country  of  anotlier.  On  the  other  hand,  if  the  courts 
of  a  country  were  to  claim,  as  against  a  person  resident  there,  jurisdic- 
tion to  adjudicate  upon  the  title  to  land  in  a  foreign  country,  and  to 
enforce  its  adjudication  in  personam.,  it  is  by  no  means  certain  that 
any  rule  of  international  law  would  be  violated.  But  in  considering 
what  jurisdiction  our  courts  possess,  and  have  claimed  to  exercise 
in  relation  to  matters  arising  out  of  the  country,  the  principles  which 
have  found  general  acceptance  amongst  civilized  nations  as  defining 
the  limits  of  jurisdiction  are  of  great  weight. 

It  was  admitted  in  the  present  case,  on  behalf  of  the  respondents, 
that  the  court  could  not  make  a  declaration  of  title,  or  grant  an  injunc- 
tion to  restrain  trespasses,  the  respondents  having  in  relation  to  these 


CHAP.    IV.]       BEITISH,  ETC.  CO.  V.  COMPANIIIA  DE  MOC.\MBIQUE.  509 

matters  abandoned  their  appeal  in  the  court  below.  But  it  is  said  that 
the  court  may  inquire  into  the  title,  and,  if  the  plaintiffs  and  not  the  de- 
fendants are  found  to  have  the  better  title,  may  award  damages  for  the 
trespass  committed.  My  Lords,  I  find  it  ditllcult  to  see  why  this  dis- 
tinction should  be  drawn.  It  is  said,  because  the  courts  have  no 
power  to  enforce  their  judgment  by  any  dealing  with  the  land  itself, 
where  it  is  outside  their  territorial  jurisdiction.  l^ut  if  the}-  can 
determine  the  title  to  it  and  compel  the  payment  of  damages  founded 
upon  such  determination,  wlij-  should  not  they  equalh'  proceed  in  per- 
sonam against  a  person  who,  in  spite  of  that  determination,  insists  on 
disturbing  one  who  has  been  found  by  the  court  to  be  the  owner  of  the 
property  ? 

It  is  argued  tliat  if  an  action  of  trespass  cannot  be  maintained  in  this 
country  where  the  land  is  situate  abroad,  a  wrong-doer  by  coming  to 
this  country  might  leave  the  person  wronged  without  any  remedy.  It 
might  be  a  sufficient  answer  to  this  argument  to  say  that  this  is  a  state 
of  things  which  has  undoubtedly-  existed  for  centuries  without  any  evi- 
dence of  serious  mischief  or  an}-  intervention  of  the  legislature  ;  for 
even  if  the  Judicature  Rules  have  the  effect  contended  for,  I  do  not 
think  it  can  be  denied  that  this  was  a  result  neither  foreseen  nor  in- 
tended. But  there  appear  to  me,  I  confess,  to  be  solid  reasons  why 
the  courts  of  this  country  should,  in  common  with  tliose  of  most  other 
nations,  have  refused  to  adjudicate  upon  claims  of  title  to  foreign  land 
in  proceedings  founded  on  an  alleged  invasion  of  the  proprietary  rights 
attached  to  it,  and  to  award  damages  founded  on  that  adjudication. 

The  inconveniences  w^hich  might  arise  from  such  a  course  are 
obvious,  and  it  is  by  no  means  clear  to  my  mind  that  if  tlie  courts 
wei-e  to  exercise  jurisdiction  in  such  cases  the  ends  of  justice  would  in 
the  long  run,  and  looking  at  the  matter  broadl}',  be  promoted.  Sup- 
posing a  foreigner  to  sue  in  this  country-  for  trespass  to  his  lands  sit- 
uate abroad,  and  for  taking  possession  of  and  expelling  him  from  them, 
what  is  to  be  the  measure  of  damages?  There  being  no  legal  process 
here  by  which  he  could  obtain  possession  of  the  lands,  the  plaintiff 
might,  I  suppose,  in  certain  circumstances,  ol)tain  damages  equal  in 
amount  to  their  value.  But  what  would  there  be  to  prevent  his  leav- 
ing this  country  after  obtaining  these  damages  and  re-possessing  him- 
self of  the  lands?  What  remedy  would  the  defendant  have  in  such  a 
case  where  the  lands  are  in  an  unsettled  country,  with  no  laws  or  regu- 
lar system  of  government,  but  where,  to  use  a  familiar  expression,  the 
only  right  is  might?  Such  an  occurrence  is  not  an  impossible,  or  even 
an  improbable,  hypothesis.  It  is  quite  true  that  in  the  exercise  of  the  un- 
doubted jurisdiction  of  the  courts  it  ma}-  become  necessary  incidentally 
to  investigate  and  determine  the  title  to  foreign  latids;  l)ut  it  does  not 
seem  to  me  to  follow  that  because  such  a  question  may  incidentally 
arise  and  fall  to  be  adjudicated  upon,  the  courts  possess,  or  that  it  is 
expedient  that  they  should  exercise,  jurisdiction  to  tr}'  an  action 
founded  on  a  disputed  claim  of  title  to  foreign  hinds. 


510  GARDNER  V.    THOMAS.  [CHAP.  IV. 

For  the  reasons  with  which  I  have  troubled  your  Lordships  at  some 
length,  I  think  the  judgment  appealed  from  should  be  reversed  and  the 
judgment  of  the  Divisional  Court  restored,  and  that  the  respondents 
should  pa}'  the  costs  here  and  in  the  court  below,  and  I  move  your 
Lordships  accordingly. i 


ANONYMOUS. 
General  Court  of  Massachusetts  Bay  Colony.    1648. 

[Reported  2  Massachusetts  Colonial  Records,  255.] 

A  QUESTION  arising  about  the  interpretation  of  a  clause  in  a  law, 
made  42,  about  tryall  of  actions,  &c.,  viz.  whether  a  personall  action,  as 
for  battery,  &c.  ariseing  upon  an  act  commited  in  England,  &  the 
parties  come  both  into  this  iurisdiction,  whether  by  law  we  are  barred 
from  trying  the  action  of  battery  in  this  iurisdiction,  the  Courte  hath 
voted  that  we  are  not  barred  by  that  lawe,  because  a  personall  action 
followeth  the  person,  &  from  the  person  onely  the  cause  of  the  action 
ariseth. 


GARDNER   i'.   THOMAS. 
Supreme  Court  of  New  York. 

[Reported  14  Johnson's  Reports,  134.] 

Yates,  J.,  delivered  the  opinion  of  the  court.^  This  cause  comes  up 
on  certiorari  to  the  Justices'  Court  in  New  Y^ork.  The  action  was  for 
an  assault  and  battery.  The  defendant  pleaded  that  the  assault  and 
battery  (if  any)  was  committed  on  boara  of  a  British  vessel  upon  the 
high  seas,  and  that  the  plaintiff  and  defendant  were  both  British  sub- 
jects, one  the  master,  and  the  other  a  sailor,  on  board  the  same  vessel. 
To  this  plea  there  was  a  demurrer  and  joinder,  on  which  judgment  was 
given  for  the  plaintiff  below. 

The  question  presented  by  this  case  is,  whether  this  court  will  take 
cognizance  of  a  tort  committed  on  the  high  seas,  on  board  of  a  foreign 
vessel,  both  the  parties  being  subjects  or  citizens  of  the  country  to 
which  the  vessel  belongs. 

1  Lords  Halsbuey,  Macnaghten,  and  Morris  concurred. 

Ace.  (in  addition  to  the  authorities  cited  in  the  dissenting  opinion  in  Little  v. 
Ry.,  infra),  Howard  v.  IngersoU,  23  Ala.  673.  See  Laird  v.  R.  R.,  62  N.  H.  254; 
Tyson  v.   McGuiness,  25  Wis.  656.  —  Ed. 

2  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


CHaP.  IV.]  GARDNER  V.    THOMAS.  511 

It  must  be  conceded  that  the  law  of  nations  gives  complete  and  entire 
jurisdiction  to  the  courts  of  the  country  to  which  the  vessel  belongs, 
but  not  exclusivel}'.  It  is  exclusive  only  as  it  respects  the  public  injur}-, 
but  concurrent  with  the  tribunals  of  other  nations,  as  to  the  private 
remedy.  There  may  be  cases,  however,  where  the  refusal  to  take  cog- 
nizance of  causes  for  such  torts  may  be  justified  by  the  manifest  public 
inconvenience  and  injur}-  which  it  would  create  to  the  community  of 
both  nations  ;  and  the  present  is  such  a  case. 

In  Mostyn  v.  Fabrigas  (Cowp.  176),  Lord  Mansfield,  in  his  opin- 
ion there  stated,  is  sufficiently  explicit  as  to  the  doctrine,  that  for  an 
injury  committed  on  the  high  seas,  circumstanced  like  the  one  now 
before  us,  an  action  ma}'  be  sustained  in  the  court  of  King's  Bench  ; 
he  onl}-  appears  to  doubt  whether  an  action  may  be  maintained  in 
England  for  an  injur}-  in  consequence  of  two  persons  fighting  in  France, 
when  both  are  within  the  jurisdiction  of  the  court.  The  present  action, 
however,  is  for  an  injury  on  the  high  seas ;  and,  of  course,  without  the 
actual  or  exclusive  territory  of  any  nation. 

The  objection  to  the  jurisdiction,  because  it  must  be  laid  in  the 
declaration  to  be  against  the  peace  of  the  people,  is  not  sufficient,  for 
that  is  mere  matter  of  form,  and  not  traversable.  In  Rafael  v.  Verelst, 
2  Black.  Rep.  1058,  De  Grey,  chief  justice,  says,  that  personal  injuries 
are  of  a  transitory  nature,  et  sequuntur  Jvrum  rei  ;  and  though,  in  all 
declarations,  it  is  laid  contra  pacem,  yet  that  is  only  matter  of  form, 
and  not  traversable. 

It  is  evident,  then,  that  our  courts  may  take  cognizance  of  torts 
committed  on  the  high  seas,  on  board  of  a  foreign  vessel,  where  both 
parties  are  foreigners  ;  but  I  am  inclined  to  think  it  must,  on  principles 
of  policy,  often  rest  in  the  sound  discretion  of  the  court  to  afford  juris- 
diction or  not,  according  to  the  circumstances  of  the  case.  To  say  that 
it  can  be  claimed  in  all  cases,  as  matter  of  right,  would  introduce  a 
principle  which  might,  often  times,  be  attended  with  manifest  disadvan- 
tage, and  serious  injury  to  our  own  citizens  abi'oad,  as  well  as  to 
foreigners  here.  Mariners  might  so  annoy  the  master  of  a  vessel  as  to 
break  up  the  voyage,  and  tb.us  produce  great  distress  and  ruin  to  the 
owners.  The  facts  in  this  case  sufficiently  show  the  impropriety  of 
extending  jurisdiction,  because  it  is  a  suit  brought  by  one  of  the 
mariners  against  the  master,  both  foreigners,  for  a  personal  injury  sus- 
tained on  board  of  a  foreign  vessel,  on  the  high  seas,  and  lying  in  port 
when  the  action  was  commenced,  and,  for  aught  that  appears  in  the 
case,  intending  to  return  to  their  own  country,  without  delay,  other 
than  what  the  nature  of  the  voyage  required.  Under  such  circum- 
stances, it  is  manifest  that  correct  policy  ought  to  have  induced  the 
court  below  to  have  refused  jurisdiction,  so  as  to  prevent  the  serious 
consequences  which  must  result  from  the  introduction  of  a  system,  with 
regard  to  foreign  mariners  and  vessels,  destructive  to  commerce  ;  since 
it  must  materially  affect  the  necessary  intercourse  between  nations,  by 
which  alone  it  can  be  maintained.     The  plaintiff,  therefore,  ought  to 


512  ROBERTS    V.    KNIGHTS.  [CHAP.    IV. 

have  been  left  to  seek  redress  in  the  courts  of  his  own  countr}'  on  his 
return.  The  judgment,  for  these  reasons,  may  be  deemed  to  be  im- 
providently  rendered  in  the  court  below,  and  is,  therefore,  reversed. 

Judgment  of  reversal^ 


ROBERTS   V.   KNIGHTS. 
Supreme  Judicial  Court  of  Massachusetts.     1863. 

[Reported  7  Allen,  449.] 

Contract  brought  in  the  PoUce  Court  of  Boston  by  the  plaintiff,  who 
is  a  British  subject,  against  the  master  of  a  British  vessel,  who  is  also  a 
British  subject.  The  defendant  objected,  in  the  Police  Court,  that  the 
court  had  no  jurisdiction,  and  a  hearing  was  thereupon  had  upon  all 
the  questions  involved,  and  the  case  was  dismissed,  and  the  plaintiff 
appealed  to  the  Superior  Court.^ 

Chapman,  J.  The  question  now  presented  is,  whether  our  courts  are 
bound  to  take  jurisdiction  of  this  case,  both  the  parties  being  aliens,  and 
having  only  a  transient  residence  within  the  Commonwealth. 

The  Gen.  Sts.  do  not  settle  the  question.  Not  much  light  is  thrown 
upon  it  by  c.  123,  §  1,  cited  by  the  plaintiff's  counsel,  which  provides 
that,  if  neither  party  lives  in  the  State,  a  transitory  action  may  be 
brought  in  any  county.  Nor  have  we  been  able  to  find  any  provisions 
in  any  of  our  treaties  with  Great  Britain  which  give  us  any  aid.     The 

1  See  Otis  v.  Wakeraan,  1  Hill,  604.  In  Smith  v.  Crocker,  14  App.  Div.  245  (1897), 
O'Brien,  J.,  said:  "The  contention  that,  because  both  the  plaintiff  and  the  defendant 
Crocker  are  non-residents,  the  trial  court  should  have  refused  to  entertain  jurisdiction 
of  the  cause,  we  regard  as  equallj'  untenable.  We  are  referred  to  a  number  of  cases 
(Ferguson  v.  Neilson,  33  N.  Y.  St.  Eepr.  814  ;  Robinson  v.  Oceanic  Steam  Nav.  Co., 
112  N.  Y.  315)  in  which  it  was  held  that  the  courts  of  this  State  will  not  retain  juris- 
diction of  and  determine  an  action  for  tort  between  parties  residing  in  other  States  on 
causes  of  action  arising  out  of  the  State,  as  a  matter  of  public  policy,  unless  special 
reasons  are  shown  to  exist  which  make  it  necessary  or  proper  so  to  do.  An  examina- 
tion of  the  cases  cited,  as  well  as  of  all  to  which  our  attention  has  been  called  where 
that  rule  has  been  applied,  were  actions  in  tort,  and  not  actions  upon  a  contract.  Our 
courts  have  never  refused  to  entertain  jurisdiction  of  a  cause  of  action  arising  upon 
contract.  In  the  case  of  Davidsburgh  v.  The  Knickerbocker  Life  Ins.  Co.  (90  N.  Y. 
526),  it  was  held  that  as  the  City  Court  of  Brooklyn  was  a  local  court,  of  limited  juris- 
diction, unless  the  defendants  came  within  the  classes  over  which  the  statute  had  con- 
ferred jurisdiction  upon  this  court,  the  parties  could  not  confer  jurisdiction  by  consent. 
This  case  is  in  no  respect  an  authority  for  the  rule  contended  for  by  the  appellants. 
"Whether,  therefore,  this  contract  was  made  in  California  or  New  York  —  upon  which 
question  much  in  favor  of  the  view  that  it  was  a  New  York  contract  might  be  said  — 
we  do  not  think  it  is  necessary  to  determine  ;  as  it  appears  that  the  action  was  one 
upon  contract,  the  court  committed  no  error  in  entertaining  jurisdiction  of  the 
cause."  —  Ed. 

2  Only  so  much  of  the  case  as  involves  this  question  is  given.  —  Ed. 


CHAP.    IV.]  ROBERTS   V.    KNIGHTS.  513 

question  whether  the  courts  of  a  country  ought  to  take  jurisdiction  of 
litigation  between  aliens,  temporarily  residing  within  its  limits,  is  pri- 
marily one  of  international  law. 

Vattel,  b.  2,  c.  8,  §  103,  says  that  by  the  law  of  nations  disputes  that 
may  arise  between  strangers,  or  between  a  stranger  and  a  citizen,  ouglit 
to  be  terminated  by  the  judge  of  the  place,  and  also  by  the  laws  of  the 
place.  In  2  Kent's  Com.  (6th  ed.)  64,  this  authority  is  cited,  and  the 
law  is  stated  to  be  that  if  strangers  are  involved  in  disputes  with  our 
citizens,  or  with  each  other,  they  are  amenable  to  the  ordiuary  tribunals 
of  the  country.  No  distinction  is  made  between  transient  and  perma- 
nent residents. 

In  1650  our  colonial  legislature  passed  an  act,  reciting  that  "  whereas 
oftentimes  it  comes  to  pass  that  strangers  coming  amongst  us  have  sud- 
den occasions  to  try  actions  of  several  natures  in  our  courts  of  justice," 
the  right  is  therefore  given  to  them.  3  Col.  Rec.  202.  See  also  Anc. 
Chart.  91.  In  1672  another  act  was  passed,  confirming  and  regulating 
the  right.  4  Col.  Rec.  part  2,  532.  See  also  Anc.  Chart.  192.  These 
acts  make  no  exception  of  cases  of  transient  residence,  and  they 
established  our  municipal  law  at  a  very  early  date. 

In  Barrel!  r.  Benjamin,  15  Mass.  354,  it  was  objected  that  the  de- 
fendant, whose  domicile  was  in  Demerara.  being  transiently  here,  was 
not  liable  to  be  sued  in  our  courts  by  the  plaintiff,  whose  domicile  was 
in  Connecticut,  and  who  was  also  transiently  here.  The  precise  ques- 
tion which  arises  in  the  present  case  was  not  before  the  court,  but  the 
reasoning  of  Parker,  C.  J.,  goes  to  sustain  the  marginal  note  of  the  case, 
which  is  as  follows  :  "It  seems  that  one  foreigner  may  sue  another  who 
is  transiently  within  the  limits  of  this  State,  upon  a  contract  made  be- 
tween them  in  a  foreign  country." 

In  Judd  V.  Lawrence,  1  Cush.  531,  it  was  held  that  an  alien  resident 
within  the  Commonwealth  is  entitled  to  the  l)onefit  of  the  insolvent  laws. 
Since  St.  1852,  c.  29,  aliens  have  been  able  to  take,  hold,  and  transmit 
real  estate.  It  seems,  therefore,  to  be  the  policy  of  modern  times  to 
enlarge  rather  than  diminish  the  rights  and  privileges  of  aliens. 

The  courts  of  the  United  States  have  not  jurisdiction  where  both  par- 
ties are  aliens,  because  this  is  not  one  of  the  enumerated  cases  in  which 
jurisdiction  is  given  to  them.  Barrell  v.  Benjamin,  uhi  supra  ;  Turner 
V.  Bank  of  North  America,  4  Dall.  11  ;  Hodgson  v.  Bowerbank,  5  Cranch, 
303. 

The  argument  ab  inconvenienti,  which  is  urged  on  behalf  of  the  de- 
fondant,  has  much  force.  It  is  extremely  inconvenient  to  one  who  is 
temporarily  in  a  foreign  country  to  be  sued  by  a  fellow-countryman  in 
its  courts.  But  it  is  met  by  an  argument  of  equal  force  on  the  other 
side.  If  the  plaintiff  had  no  such  remedy,  he  would  often  be  subjected 
to  great  hardships.  On  the  whole,  it  is  consonant  to  natural  right  and 
justice  that  the  courts  of  every  civilized  country  should  be  open  to  hear 
the  causes  of  all  parties  who  may  be  resident  for  the  time  being  within 
its  limits. 

33 


514  BTJRDICK    V.   FREEMAN.  [CHAP.    IV. 

The  defendant  relies  upon  a  clause  in  the  Merchants'  Shipping  Act 
(17  &  18  Vict.  c.  104),  which  provides  that,  in  a  contract  like  that  of 
the  plaintiff,  no  seaman  shall  sae  for  wages  in  any  court  abroad,  except 
in  cases  of  discharge  or  of  danger  to  life. 

But  this  act  cannot  affect  the  question  of  jurisdiction,  which,  on  the 
motion  to  dismiss,  is  the  only  question  to  be  considered.^ 


BURDICK  V.   FREEMAN. 
Court  of  Appeals,  New  York.    1890. 

[Reported  120  Neio  York,  420.] 

FoLLETT,  C.  J.     This  action,  begun  February  19,  1895,  is  for  crim- 
inal conversation.^  .   .  .  After  the  court  had  concluded  its  charge,  the 
defendant  asked  that  the  jury  be  instructed  "that  the  plaintiff  cannot 
maintain  this  action  in  the  courts  of  this  State,  and  that  this  court  has 
no  jurisdiction  of  this  case."    This  request  was  refused,  and  the  defend- 
ant excepted.     This  action  was  for  the  recovery  of  damages  for  a  per- 
sonal injury.     Code  Civil  Proc,  §  3343,  subd.  9.     The  courts  of  this 
State  may,  in  their  discretion,  entertain  jurisdiction  of  such  an  action 
between  citizens  of  another  State  actually  domiciled  therein  when  the 
action  was  begun  and  tried,  though  the  injury  was  committed  in  the 
State  of  their  residence  and  domicile.     Gardner  v.  Thomas,  14  Johns. 
134 ;  Johnson  v.  Dalton,  1  Cow.  543  ;  Dewitt  v.  Buchanan,  54  Barb. 
31 ;  Mclvor  v.  McCabe,  26  How.  257;  Newman  v.  Goddard,  3  Hun,  70  ; 
Mostyn  v.  Fabrigas,  2  Smith,  Lead.  Cas.  (9th  ed.),  916  ;  Story,  Conf. 
Laws,  §  542;  Whart.  Conf.  Laws,  §§  705,  707,  748;   4  Phillim.  Int. 
Law,  701.     The  judgments  in  Molony  v.  Dows,  8  Abb.  Pr.  316,  and 
Latourette  v.  Clark,  30  How.  Pr.  242,  in  so  far  as  they  hold  otherwise, 
must  be  regarded  as  overruled.     The  defendant  had  not  left  the  State 
of  his  residence,  nor  had  he  removed  his  property  therefrom,  when  this 
action  was  begun,  and  we  find  no  sufficient  reason  for  prosecuting  it  in 
the  courts  of  this  State.     But  this  action  had  been  pending  for  a  year, 
and  the  question  as  to  whether  the  court  should  entertain  jurisdiction 
had  not  been  raised  by  answer,  by  special  motion,  or  during  the  trial; 
and  we  think  that,  while  the  Supreme  Court  might,  in  the  exercise  of  its 
discretion,  have  refused  to  entertain  the  action,  or  dismissed  it  on  its 
own  motion,  yet  the  defendant,  not  being  entitled  to  a  dismissal  as  a 
matter  of  right,  ought  not  to  be  permitted  to  lie  by  until  the  close  of  the 
trial,  when  its  probable  result  could  be  inferred,  and  then  successfully 
invoke  the  exercise  of  the  discretion  of  the  court  in  his  favor.     The 
judgment  should  be  affirmed,  with  costs.     All  concur,  except  Bradley 
and  Haight,  JJ.,  not  sitting. 

1  Ace.  Cofrode  v.  Gartner,  79  Mich.  332,  44  N.  "W.  623.  —Ed. 

2  Part  of  the  opinion  is  omittetl.  —  Ed. 


CHAP.    IV.]  LITTLE    V.    CHICAGO,   ETC.    RAILWAY.  515 


LITTLE  V.   CHICAGO,    ST.   PAUL,  MINNEAPOLIS,   AND 

OMAHA   RAILWAY. 

Supreme  Court  ok  Minnesota.     1896. 

[Reported  65  Minnesota,  48.] 

Mitchell,  J.  This  action  was  brought  to  recover  damages  for 
injuries  to  real  estate  situated  in  Wisconsin,  caused  by  the  negligence 
of  the  defendant.  The  question  presented  is,  can  the  courts  of  this 
State  take  cognizance  of  actions  to  recover  damages  to  real  estate 
lying  without  the  State:  in  other  words,  is  such  an  action  local  or 
transitory  in  its  nature  ? 

The  history  of  the  progress  of  the  English  common  law  respecting 
the  locality  of  actions  will  aid  in  determining  how  this  question  ought 
to  be  decided  on  principle.  Originally,  all  actions  were  local.  This 
arose  out  of  the  constitution  of  the  old  jury,  who  were  but  witnesses 
to  prove  or  disprove  the  allegations  of  the  parties,  and  hence  every 
case  had  to  be  tried  by  a  jury  of  the  vicinage,  who  were  presumed  to 
have  personal  knowledge  of  the  parties  as  well  as  of  the  facts.  But, 
as  circumstances  and  conditions  changed,  the  courts  modified  the  rule 
in  fact,  although  not  in  form.  For  that  purpose  they  invented  a 
fiction  by  which  a  party  was  permitted  to  allege,  under  a  videlicet, 
that  the  place  where  the  contract  was  made  or  the  transaction  occurred 
was  in  any  county  in  England.  The  courts  took  upon  themselves  to 
determine  when  this  fictitious  averment  should  and  when  it  should  not 
be  traversable.  They  would  hold  it  not  traversable  for  the  purpose 
of  defeating  an  action  it  was  invented  to  sustain,  but  always  traver- 
sable for  the  purpose  of  contesting  a  jurisdiction  not  intended  to  be 
protected  by  the  fiction.  Those  actions  in  which  it  was  held  not 
traversable  came  to  be  known  as  transitory,  and  those  in  which  it 
was  held  traversable  as  local,  actions.  Actions  for  personal  torts, 
wherever  committed,  and  upon  contracts  (including  those  respecting 
lands),  wherever  executed,  were  deemed  transitory',  and  might  be 
brought  wherever  the  defendant  could  be  found. 

As  respects  actions  for  injuries  to  real  propert}',  we  cannot  discover 
that  it  was  definitely  settled  in  England  to  which  class  they  belonged 
prior  to  the  American  Revolution.  As  late  as  1774,  in  the  leading 
case  of  Mostyn  v.  Fabrigas,  1  Cowp.  161,2  Smith,  Lead.  Cas.  (9th  cd.) 
916,  Lord  Mansfield,  who  did  more  than  any  other  jurist  to  brush 
away  those  mere  technicalities  which  had  so  long  obstructed  the 
course  of  justice,  referred  to  two  cases  in  which  he  had  Iield  that 
actions  would  lie  in  England  for  injuries  to  real  estate  situated  abroad. 
In  that  same  case  he  said  (at  page  179,  (Smith)  page  936)  :  "  Can  it 
be  doubted  that  actions  may  be  maintained  here,  not  only  upon  con- 
tiacts  which  follow  the  persons,  but  for  injuries  done  by  subject  to 
subject,  especially  for  injuries  where  the  whole  that  is  prayed  is  a 


516  LITTLE   V.    CHICAGO,   ETC.    RAILWAY.  [CHAP.    IV. 

reparation  in  damages  or  satisfaction  to  be  made  b}'  process  against 
tlie  person  or  his  eilects  within  the  jurisdiction  of  the  court  ?"  While 
all  that  is  there  said  as  to  actions  for  injuries  to  real  property  is  obiter, 
yet  it  clearly  indicates  the  views  of  that  great  jurist  on  the  subject. 
And  we  cannot  discover  that  it  was  fully  settled  in  England  that 
actions  for  injuries  to  lands  were  local  until  the  decision  of  Doulson  v. 
Matthews,  4  Term  R.  503,  in  1792,  —  sixteen  years  after  the  declara- 
tion of  American  independence.  The  courts  of  England  seem  to  have 
finally  settled  down  upon  the  rule  that  an  action  is  transitory  where 
the  transaction  on  which  it  is  founded  might  have  taken  place  any- 
where ;  but  is  local  when  the  transaction  is  necessarily  local,  —  that  is, 
could  only  have  happened  in  a  particular  place.  As  an  injury  to  land 
can  only  be  committed  where  the  land  lies,  it  followed  that,  according 
to  this  test,  actions  for  such  injuries  were  held  to  be  local.  As  the 
distinction  between  local  and  transitory  venues  was  abolished  by  the 
Judicature  Act  of  1873  (see  36  &  37  Vict.  c.  Q&,  Rules  of  Procedure,  28), 
we  infer  that  actions  for  injuries  to  lands  lying  abroad  may  now  be 
maintained  in  England. 

It  is  somewhat  surprising  that  the  American  courts  have  generall}' 
given  more  weight  to  the  English  decisions  on  the  subject  rendered 
after  the  Revolution  than  to  those  rendered  before,  and  hence  have 
almost  universally  held  that  actions  for  injuries  to  lands  are  local.  In 
the  leading  case  of  Livingston  ?'.  Jefferson,  1  Brock.  203,  Fed.  Cas. 
No.  8,411,  which  has  done  more  than  any  other  to  mould  the  law  on  the 
subject  in  this  countr}-.  Chief  Justice  Marshall  argued  against  the  rule, 
showing  that  it  was  merely  technical,  founded  on  no  sound  principle, 
and  often  defeated  justice ;  but  concluded  that  it  was  so  thoroughl}' 
established  bj'  authorit}-  that  he  was  not  at  liberty'  to  disregard  it. 
But  so  unsatisfactor}'  and  unreasonable  is  the  rule  that  since  that  time 
it  has,  in  a  number  of  States,  been  changed  by  statute,  and  in  others 
the  courts  have  frequently  evaded  it  b}-  metaphysical  distinctions  in 
order  to  prevent  a  miscarriage  of  justice.  Chief  Justice  Marshall's 
own  State  of  Virginia  changed  the  rule  b}- statute  as  early  as  1819. 
Some  courts  have  made  a  subtle  distinction  between  faults  of  omis- 
sion and  of  commission.  Thus  in  Titus  v.  Inhabitants  of  Frankfort, 
15  Me.  89,  which  was  an  action  against  a  town  for  damages  sustained 
b}'  reason  of  defects  in  a  highwa}",  it  was  held  that,  while  highways  must 
be  local,  the  neglect  of  the  defendant  to  do  its  dut}-,  being  a  mere  non- 
feasance, was  transitor}'.  It  has  also  been  held  that  where  trespass 
upon  land  is  followed  by  the  asportation  of  timber  severed  from  the 
land,  if  the  plaintiff  waives  the  original  trespass,  and  sues  simplj'  for 
the  conversion  of  the  property  so  carried  awa}',  the  action  would  become 
transitory.  American  U.  Tel.  Co.  v.  Middleton,  80  N.  Y.  408  ;  Whid- 
den  V.  Seelye,  40  Me.  247.  Again,  it  has  been  sometimes  held  that  an 
action  for  injuries  to  real  estate  is  transitory  where  the  gravamen  of 
the  action  is  negligence,  —  as  for  negligently  setting  fire  to  the  plain- 
tiff's premises.     Home  Ins.  Co.  v.  Pennsylvania  R.  Co.,  11  Hun,  182; 


CilAP.    IV.]  LITTLE    V.    CHICAGO,   ETC.    RAILWAY.  517 

Barne}-  v.  Burstenbinder,  7  Lans.  210.  In  Ohio  the  rule  has  been 
repudiated,  at  least  as  to  causes  of  action  arising  within  the  State,  as 
being  wholly  unsuited  to  their  condition,  because  under  their  judicial 
system  it  would  result  in  many  cases  in  a  total  denial  of  justice. 
Genin  v.  Grier,  10  Ohio,  209. 

Almost  every  court  or  judge  who  has  ever  discussed  the  question 
has  criticised  or  condemned  the  rule  as  technical,  wrong  on  principle, 
and  often  resulting  in  a  total  denial  of  justice,  and  yet  has  considered 
himself  bound  to  adhere  to  it  under  the  doctrine  of  stare  decisis. 

An  action  for  damages  for  injuries  to  real  property  is  on  principle 
just  as  transitory  in  its  nature  as  one  on  contract  or  for  a  tort  committed 
on  the  person  or  personal  property.  The  reparation  is  purely  per- 
sonal, and  for  damages.  Such  an  action  is  purely  personal,  and  in 
no  sense  real.  Every  argument  founded  on  practical  considerations 
against  entertaining  jurisdiction  of  actions  for  injuries  to  lands  lying  in 
another  State  could  be  urged  as  to  actions  on  contracts  executed,  or 
for  personal  torts  committed,  out  of  the  State,  at  least  where  the 
subject-matter  of  the  transaction  is  not  within  the  State.  Take,  for 
example,  personal  actions  on  contracts  respecting  lands  which  are  con- 
ceded to  be  transitory.  An  investigation  of  title  of  boundaries,  etc., 
may  be  desirable,  and  often  would  be  essential  to  the  determination  of 
the  case,  yet  such  considerations  have  never  been  held  to  render  the 
actions  local.  Another  serious  objection  to  the  rule  is  that  under  it  a 
party  mav  have  a  clear,  legal  right  without  a  remedy-  where  the  wrong- 
doer cannot  be  found,  and  has  no  property  within  the  State  where  the 
land  is  situated.  As  suggested  by  plaintiff's  counsel,  if  the  rule  be 
adhered  to,  all  that  the  one  who  commits  an  injury  to  land,  whether 
negligentlv  or  wilfully,  has  to  do  in  order  to  escape  liabilit}',  is  to 
depart  from  the  State  where  the  tort  was  committed,  and  refrain 
from  returning.  In  such  case  the  owner  of  the  land  is  absolutely 
remediless. 

AVe  recognize  the  respect  due  to  judicial  precedents,  and  the  au- 
thority of  the  doctrine  o^  stare  decisis  ;  but,  inasmuch  as  tliis  rule  is  in 
no  sense  a  rule  of  property,  and  as  it  is  purely  technical,  wrong  in 
l)rinciple,  and  in  practice  often  results  in  a  total  denial  of  justice,  and 
lias  l)een  so  generally  criticised  by  eminent  jurists,  we  do  not  feel 
liound  to  adhere  to  it,  notwithstanding  the  great  array  of  judicial 
decisions  in  its  favor.  If  the  courts  of  England,  generations  ago, 
were  at  libert}'  to  invent  a  fiction  in  order  to  change  the  ancient  rule 
that  all  actions  were  local,  and  then  fix  their  own  limitations  to  the 
application  of  the  fiction,  we  cannot  see  why  the  courts  of  the  present 
day  should  deem  themselves  slavishly  bound  by  those  limitations. 

It  is  suggested  that  the  statutes  of  this  State,  in  conformity  to  the 
old  rnle,  make  actions  for  injuries  to  real  property  local.  G.  S.  1894, 
§§  5182,  .5183.  This  is  true,  and,  strangely  enough,  in  188,5  the 
Legislature  went  so  far  as  to  provide  tlirit,  if  the  county  designated  in 
»hc  coMi[)l;iint  is  not  the  proper  one,  tlic  court  slionid  iiave  no  jurisdiction 


518  LITTLE    V.    CHICAGO,    ETC.    RAILWAY.  [CHAP.    IV. 

of  the  action.  But  this  statute  has  no  application  to  causes  of  action 
arising  out  of  the  State.  While  it  settles  the  rule  and  indicates  the 
policy  of  this  (State  as  to  actions  for  injuries  to  real  propert}'  within  the 
State,  we  do  not  think  it  ought  to  have  any  weight  in  determining  what 
the  rule  should  be  as  to  causes  of  action  arising  out  of  the  state,  which 
can  have  no  local  venue  here  under  the  provisions  of  the  statute.  It  does 
not  appear  whether  the  plaintiff  lives  in  this  State  or  in  Wisconsin,  but 
this  is  immaterial,  for  the  place  of  his  residence  cannot  affect  the  nature 
of  the  action.  It  is  also  true  that  in  this  particular  case  jurisdiction 
of  the  defendant  could  be  obtained  in  Wisconsin,  but  this  fact  is  like- 
wise immaterial,  and  for  the  same  reason.  Order  reversed. 

Buck,  J.  I  dissent.  The  doctrine  laid  down  in  the  foregoing 
opinion  is  conceded  to  be  against  the  great  weight  of  judicial  authorit}', 
and,  according  to  my  view,  is  unsound  in  principle,  and  contrary  to  a 
wise  public  polic3^  The  plaintiff  is  a  citizen  of  the  State  of  Wisconsin, 
and  the  defendant  a  railroad  corporation  organized  under  the  laws  of 
that  State  with  its  line  constructed  therein  and  extending  into  this  State. 
The  action  is  brought  in  Minnesota  to  recover  for  damages  done  by  the 
defendant  to  plaintiff's  real  estate  situate  in  the  State  of  AVisconsin. 
In  my  opinion,  the  action  is  one  clearly  local  in  its  nature,  and  not 
transitory,  and  the  courts  of  this  State  have  no  jurisdiction  over  the 
subject-matter. 

In  Cooley  on  Torts  (page  471)  it  is  said  that :  —  "  The  distinction 
between  transitory  and  local  actions  is  this  :  If  the  cause  of  action 
is  one  that  might  have  arisen  anywhere,  then  it  is  transitory  ;  but  if 
it  could  only  have  arisen  in  one  place,  then  it  is  local.  Therefore, 
while  an  action  of  trespass  to  the  person  or  for  the  conversion  of 
goods  is  transitory,  action  for  flowing  lands  is  local,  because  they 
can  be  flooded  only  where  they  are.  For  the  most  part,  the  actions 
which  are  local  are  those  brought  for  the  recovery  of  real  estate,  or  for 
injuries  thereto  or  to  easements.  [Here  the  injury  alleged  consisted 
in  burning  the  grass,  roots,  vegetable  mould,  and  other  material  form- 
ing part  of  the  plaintirs  land.]  .  .  .  That  actions  for  trespasses  on 
lands  in  a  foreign  country  cannot  be  sustained  is  the  settled  law  in 
England  and  in  this  country." 

I  am  not  able  to  state  whether  it  has  been  changed  by  statutory 
enactment,  and  the  majority  opinion  merely  infers  that  it  has  been 
so  changed.  Blackstone,  whose  Commentaries  were  written  and  de- 
livered in  the  form  of  lectures  before  the  students  of  Oxford  University 
in  1758,  says  (Volume  3,  p.  384)  that:  "All  over  the  world  actions 
transitory  follow  the  person  of  the  defendant,  while  territorial  suits 
must  be' discussed  in  the  territorial  tribunal.  I  may  sue  a  Frenchman 
here  for  a  debt  contracted  abroad  ;  but  lands  lying  in  France  must  be 
sued  for  there,  and  English  lands  must  be  sued  for  in  the  kingdom  of 
England." 

The  case  of  Mostyn  v.  Fabrigas,  1  Cowp.  161,  decided  in  1774,  is 


CHAP.    IV.]  LITTLE    V.    CHICAGO,    ETC.    KAILWAY.  519 

referred  to  as  a  leading  case,  yet  the  question  here  involved  was  not 
before  the  court  in  that  case.  There  the  plaintiff,  Fabrigas,  brought 
an  action  against  Mostyn  for  assault  and  false  imprisonment  com- 
mitted on  the  Island  of  Minorca,  and  it  was  held  that  the  court  had 
jurisdiction  of  the  subject-matter.  This  was  a  transitory  action,  within 
the  rules  of  all  the  courts.  That  a  jurist  as  great  as  Lord  31ansfield 
should  inject  into  his  opinion  in  that  case  a  remark  that  was  entirely 
without  any  relevancy  to  the  question  under  consideration,  adds  but 
little  force  to  its  weight.  And  its  force  is  still  further  lessened  by 
the  fact  that  ever  since  that  decision  the  law  of  England  has  been 
settled  by  other  eminent  jurists  as  otherwise,  and  contrary  to  the 
majority  opinion  in  this  case.  It  seems  to  me  misleading  to  call  the 
case  of  Mostyn  r.  Fabrigas  a  leading  one,  and  cite  it  as  such  upon 
an  important  legal  question,  when  the  point  here  involved  was  not 
there  in  issue.  While  the  great  weight  of  authority  is  manifestly 
against  the  doctrine  laid  down  by  the  majority  opinion,  it  may  be 
well  to  refer  to  some  of  them  more  in  detail. 

In  the  case  of  Alliu  v.  Connecticut  R.  L.  Co.,  150  Mass.  560,  23 
N.  E.  581,  it  was  held  that  an  action  of  tort  for  breaking  and  enter- 
ing the  plaintitf's  close,  situated  in  another  State,  could  not  be 
brought  in  the  Commonwealth  of  Massachusetts;  and  the  court,  in 
commenting  upon  the  statute  of  that  State  which  required  actions 
for  trespass  ([uare  clausum  to  be  brought  in  the  county  where  the 
land  lies,  said:  "There  seems  to  be  no  reason  for  holding  that  the 
statute  renders  an  action  for  trespass  to  lands  outside  the  State  tran- 
sitory which  does  not  apply  to  an  action  for  trespass  to  lands  within 
the  State."  The  statute  has  been  in  existence  nearly  100  years,  and 
we  have  not  been  referred  to  any  authority  or  dictum  to  sustain  the 
position  of  the  plaintiff.  On  the  contrary,  the  action  of  trespass 
quare  clausum  has  always  been  treated  as  a  local  action.  In  the 
case  of  Niles  v.  Howe,  57  Vt.  388,  it  was  held  that  trespass  on  the 
freehold  would  not  lie  in  that  State  for  a  trespass  committed  on  lands 
situated  in  the  State  of  Massachusetts. 

In  Du  Breuil  /'.  Pennsylvania  Co.,  130  Ind.  137,  29  N.  E.  909,  the 
court  say  an  action  cannot  be  maintained  in  this  State  for  an  injury 
to  land  lying  in  another  State,  caused  by  a  railway  company  having 
a  line  of  railroad  running  through  this  and  such  other  State.  That 
court  also  applied  the  same  doctrine  to  an  action  for  injury  to  land 
caused  by  fire  escaping  from  locomotives  in  the  case  of  Indiana,  B.  & 
W.  Ry.  Co.  V.  Foster,  107  Ind.  430,  8  N.  E.  204.  In  the  first  Indiana 
case  above  cited  Chief  Justice  Elliott  says  (at  p.  138):  "The  case 
before  us  is  one  in  which  the  land  lies  within  the  territory  of  another 
sovereignty,  and  there  can  be  no  doubt  upon  principle  or  authority 
that  our  courts  liave  no  jurisdiction."  In  Kachus  r.  Trustees,  17  111. 
534,  it  was  held  that  the  courts  of  Illinois  had  no  jurisdiction  in  an 
action  to  recover  for  injuries  to  land  situate  in  Lake  County,  in  the 
State    of    Indiana.      In    Bettys  v.   Milwaukee  I'C;   St.    P.    Ry.   Co.,   37 


520  LITTLE    V.    CHICAGO,   ETC.    RAILWAY.  [CHAP.    IT. 

Wis.  323,  it  was  held  that  an  action  for  injury  to  realty  situated  in 
Iowa  could  not  be  maintained  in  the  courts  of  the  State  of  Wiscon- 
sin. Chief  Justice  Ryan,  delivering  the  opinion  of  the  court,  said 
that  it  was  plainly-  a  local  action  under  all  of  the  authorities,  which 
could  not  be  maintained  in  the  State  of  Wisconsin;  and  he  cited  Co. 
Litt.  282a;  Bac.  Abr.  "Action"  A  (p.  79);  Comyn,  Dig.  "Action" 
N,  4,  5  (p.  251)  ;  Doulson  v.  Matthews,  4  Term  R.  503. 

In  the  State  of  New  York  the  doctrine  is  well  settled  by  numerous 
decisions  of  its  highest  court  that  suits  cannot  be  there  maintained 
for  injuries  to  lands  situated  in  other  States.      See  American  U.  Tel. 
Co.  V.   Middleton,  80  N.  Y.  408;  Cragin  v.  Lovell,   88  N.  Y.   258; 
Sentenis  v.   Ladew,   140  N.  Y.  463,  35  N.  E.  650;  Dodge  v.  Colby, 
108  N.  Y.  445,  15  N.  E.  703.     In  the  last  case  Chief  Justice  Ruger, 
in  delivering  the  opinion,  says  (at  p.  451):  "The  doctrine  that  the 
courts  of  this  State  have  no  jurisdiction  of  actions  for  trespass  upon 
lands  situated  in  other  States  is  too  well  settled  to  admit  of  discus- 
sion or  dispute.   .   .   .   The  claim  urged  by  the  plaintiff,  that,  if  not 
permitted  to  maintain  this  action,  he  is  without  remedy  for  a  most 
serious  injury,   is  quite  groundless,   and  affords   no  reason  for   the 
assumption  of  a  jurisdiction  by  this  court  which  it  does  not  possess. 
The  plaintiff  would  seem  to  have  the  same  remedy  for  the  trespasses 
alleged  that  all  other  parties  have  for  similar  injuries.     His  lands 
cannot  be  intruded   upon  without  the  presence  in  the  State  of   the 
wrongdoer,   and  no  reason  is  suggested  why  he  could  not  seek  his 
remedy  against  the  actual  wrongdoers  in  the  courts  having  jurisdic- 
tion.    His  remedy  is  ample,  and  it  is  no  excuse  for  assuming  a  juris- 
diction which  we  do   not  have  that  the  plaintiff  desires  a  remedy 
against  a  particular   person,  rather    than  one  against  the  real   per- 
petrators of  the  injury,  who  were  exposed  to  prosecution  in  the  place 
where  the  wrong  was  committed." 

This  language  would  apply  to  the  plaintiff  in  this  case.  The  de- 
fendant is  a  resident  of  the  State  of  Wisconsin,  subject  to  its  laws, 
and  service  of  summons  can  there  be  readily  and  easily  made  upon 
it.  The  gravamen  of  the  complaint  is  injury  to  the  freehold,  and 
the  records  of  title  to  that  freehold,  whether  in  or  out  of  the  plaintiff, 
are  accessible  without  trouble,  and  witnesses,  doubtless,  are  obtain- 
able without  extra  expense.  The  plaintiff  is  not  without  redress 
otherwise  than  in  the  courts  of  ]\Hnnesota.  In  fact  it  is  not  claimed 
that  the  courts  of  Wisconsin  have  no  jurisdiction  to  try  this  action, 
and  it  is  plain  that  they  have  such  jurisdiction. 

As  a  matter  of  policy,  citizens  of  other  States  should  not  be  per- 
mitted the  use  of  our  courts  to  redress  wrongs  and  injuries  to  real 
property  committed  within  their  own  territory.  That  is  not  what 
our  courts  were  created  or  organized  for.  Non-residents  should  not 
be  invited  to  bring  to  our  courts  litigation  arising  over  injuries  to 
real  property  outside  of  our  territorial  limits.  Certainly  tliere  is 
nothing  in  our  constitution  or  laws  which  justifies  them   in   imposing 


CHAP.    IV.]  LITTLE    V.    CHICAGO,   ETC.    RAILWAY.  521 

the  burden  of  maintaining  courts  at  our  expense  for  their  use  and 
benefit.  Protection  of  our  own  citizens  is  the  primary  object  and 
duty  of  our  own  courts,  and  it  is,  to  say  the  least,  a  very  generous 
and  liberal  interpretation  of  the  law  which  accords  to  suitors  resid- 
ing in  other  States  the  right  to  litigate  in  our  courts  questions  of 
injury  to  real  estate  there  situate,  while  the  courts  of  those  States 
reject  the  claim  of  our  own  citizens  to  litigate  there  injury  to  real 
estate  situate  here;  notably  the  adjoining  State  of  Wisconsin,  which 
adjoins  our  State,  and  where  the  subject-matter  of  this  litigation  is 
situated.  It  is  clearly  against  our  interests  that  those  living  in  the 
State  of  Wisconsin  near  the  division  line  should  be  encouraged  in 
this  class  of  litigation  because  our  laws  may  be  more  favorable  as 
to  the  rules  of  evidence,  or  for  any  other  cause,  and  thus  necessitate 
taxation  of  our  people  that  non-residents  may  have  a  forum  to  liti- 
gate that  which  ought  to  be  and  is  a  local  action  in  the  State  of 
Wisconsin.  Our  citizens  have  no  such  rigbt  in  the  courts  of  Wiscon- 
sin. Comity  should  be  reciprocal,  and  this  can  be  more  properly 
obtained  bj'  legislative  enactments  of  the  respective  States  than  by 
an  interpretation  in  direct  conflict  with  the  almost  universal  judicial 
decisions  elsewhere.  But  I  should  seriously  doubt  the  wisdom  of 
any  such  enactment.  It  might,  perhaps,  prevent  the  miscarriage 
of  justice  in  some  cases,  but  it  would  aid  such  miscarriage  in  many 
instances. 

The  defendant,  like  many  other  railroad  corporations,  extends  its 
line  from  other  States  to  this,  and  owns  a  vast  amount  of  lands  here. 
It  may  allege  that  citizens  of  our  State  are  committing  injuries  to 
its  real  property  here,  and  if  such  a  person  owns  land  in  Wisconsin, 
or  shall  be  found  there,  it  could,  under  such  a  law,  commence  a  suit 
in  the  courts  of  Wisconsin,  and  thus  put  our  citizens  to  the  trouble 
and  expense  of  going  to  that  State  for  trial  of  a  case  which  in  all 
fairness  should  be  tried  here.  Railroad  companies  thus  situated 
have  great  facilities  for  transporting  their  witnesses  over  their  own 
lines  without  expense  to  themselves,  while  a  poor  man,  charged,  per- 
haps unjustly,  with  a  trespass,  must  travel  hundreds  of  miles  into 
another  State  to  meet  his  accusers,  or  suffer  judgment  b}'  default. 
The  majority  opinion  means  defeat  for  the  railroad  company  in  this 
case,  but  it  would  mean  victory  for  them  hereafter  if  an  alleged  tres- 
passer upon  their  lands  in  Minnesota  is  caught  in  Wisconsin  and 
made  to  answer  in  its  courts,  if  such  a  law  should  prevail  there. 
Now  citizens  of  Wisconsin  will  liave  an  unjust  advantage  over  citi- 
zens of  Minnesota.  Again,  suppose  the  courts  of  California  should 
adopt  the  doctrine  of  the  majority  opinion,  and  one  of  our  citizens 
should  visit  that  State  for  pleasure,  health,  or  Inisiness,  and  is  there 
suc(l  Ijy  some  one  claiming  that  lands  Ixilonging  to  him  situate  iierc 
have  been  damaged  by  such  citizen  of  Miiiiicsota,  woidd  it  not  seem 
a  miscarriage  of  justice!  that  the  trial  in  such  case  must  take  place 
thousands  of  miles  away  from  tin'  man's  home,  and  from  the  situs  of 


522  LITTLE    V.    CHICAGO,    ETC.    RAILWAY.  [CHAP.    IV. 

the  property  alleged  to  have  been  injured?  The  hardship  of  such  a 
proceeding  would  seem  to  be  intolerable,  and  I  cannot  give  my 
assent  to  any  such  doctrine,  whatever  may  be  the  rule  as  to  the  trial 
of  actions  upon  voluntary  contracts  between  parties;  and  I  prefer 
that  the  rule  should  be  that  for  injuries  to  real  property  the  jurisdic- 
tion of  our  courts  should  only  be  co-extensive  with  its  territorial 
sovereignty. 

This  doctrine,  which  is  so  strongly  imbedded  in  the  common  law 
and  judicial  authorities  of  the  country,  is  further  adhered  to  by  our 
own  statute,  which  provides  that  actions  for  injuries  to  real  property 
shall  be  brought  in  the  county  where  the  subject  of  the  action  is  situ- 
ated, and  prohibits  the  court  from  having  jurisdiction  if  brought  in 
any  other  county.  G.  S.  1894,  §  5183.  Thus  we  have  a  legislative 
recognition  of  the  doctrine  that  actions  for  injuries  to  real  estate  are 
local.  If  there  is  any  implication  arising  from  legislative  enact- 
ments as  to  the  jurisdiction  of  courts  to  try  actions  for  injury  to  real 
estate  elsewhere,  it  would  be  against  the  contention  of  the  plaintiff. 
The  statute  makes  no  distinction  between  trespass  to  lands  within 
and  without  the  State.  It  does  not  make  the  action  for  trespass  to 
lands  outside  the  State  transitory.  There  is  no  warrant  in  the  lan- 
guage of  the  Constitution  or  statute  which  justifies  the  majority  opin- 
ion, and,  if  sound,  it  must  rest  upon  some  other  foundation  than  is 
to  be  found  in  the  letter  of  the  law.  It  is  a  rule  which  is  more 
favorable  to  the  plaintiff  than  the  defendant.  The  former  can  select 
his  own  forum;  the  latter  is  helpless.  No  change  of  venue  can  be 
granted,  because  none  is  authorized. 

In  criminal  cases  the  doctrine  of  local  venue  applies.  One  of  the 
specifications  of  complaint  in  the  immortal  Declaration  of  Independ- 
ence against  Great  Britain  was,  "For  transporting  us  beyond  seas  to 
be  tried  for  pretended  offences."  Our  Constitution  (article  1,  §  6) 
provides  that:  "In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial  by  an  impartial  jury  of  the 
county  or  district  wherein  the  crime  shall  have  been  committed, 
which  county  or  district  shall  have  been  previously  ascertained  by 
law."  No  one  pretends  but  that  this  is  a  sound  and  reasonable  prin- 
ciple of  law,  and  I  have  never  known  of  its  being  assailed  as  tending 
to  a  miscarriage  of  justice.  This  constitutional  guaranty  applies  to 
petty  offences  wherever  a  small  fine  might  be  imposed,  and  yet 
where,  perhaps,  all  the  property  which  a  man  owns  might  be  at  stake, 
he  can,  if  found  in  another  State,  perhaps  thousands  of  miles  away 
from  home  and  witnesses  and  the  location  of  the  alleged  injured 
property,  be  tried  civilly  in  a  foreign  sovereignty.  Why  could  he 
not  also  in  a  civil  action  be  tried  in  China,  Russia,  England,  Spain, 
Cuba,  or  Mexico,  if  found  there,  and  there  served  with  process,  if 
the  doctrine  of  the  majority  opinion  is  to  prevail?  In  the  case  of 
Niles  V.  Howe,  57  Vt.  388,  the  court  say:  "It  would  hardly  be 
claimed  that  our  courts  had  jurisdiction  over  a  crime  committed  in 


CHAP.    IV.]       MEXICAN    NATIONAL    RAILROAD    V.   JACKSON.  523 

another  State.     Aud  yet  the  same  reasoning  that  supports  the  doc- 
trine of  local  venue  applies  equally  to  crimes  and  real  actions." 
I  think  that  the  order  should  be  affirmed. 


MEXICAN   NATIONAL   RAILROAD   v.   JACKSON. 

Supreme  Court  of  Texas.     1896. 
[Reported  89  Texas,  107.  ] 

Browx,  J.^  The  plaintiff  in  error  is  a  corporation  operating  a  line 
of  railroad  in  the  republic  of  Mexico,  which  extends  into  the  State  of 
Texas.  The  defendant  in  error  was  in  the  employ  of  that  railroad 
company  in  the  republic  of  Mexico,  and,  while  engaged  in  the  per- 
formance of  duties  as  such  employee,  was  injured  at  the  station  of  La 
Ventura,  in  the  said  republic. 

The  trial  court  rendered  judgment  for  the  plaintiff  in  that  court, 
J.  O.  Jackson,  for  the  sum  of  $5,000,  from  which  appeal  was  taken, 
and  the  judgment  affirmed  by  the  Court  of  Civil  Appeals. 

The  law  of  Mexico,  under  which  plaintiffs  claim  originated, 
having  been  pleaded  and  proved  by  tlie  defendant,  the  rights  of  the 
parties  must  be  determined  by  its  provisions:  "  It  would  be  as  unjust 
to  apply  a  different  law,  as  it  would  be  to  determine  the  rights  of  the 
parties  by  a  different  transaction."  Story,  Confl.  Laws,  p.  38.  This 
is  a  transitory  action,  and  may  be  maintained  in  any  place  where  the 
defendant  is  found,  if  there  be  no  reason  why  the  court  whose  juris- 
diction is  invoked  should  not  entertain  the  action.  The  plaintiff,  how- 
ever, has  no  legal  right  to  have  his  redress  in  our  courts;  nor  is  it 
specially  a  question  of  comity  between  this  State  and  the  government 
of  Mexico,  but  one  for  the  courts  of  this  State  to  decide,  as  to  whether 
or  not  the  law  by  which  the  right  claimed  must  be  determined  is  such 
that  we  can  properly  and  intelligently  administer  it,  with  due  regard 
to  the  rights  of  the  parties.  Gardner  /•.  Thomas,  14  Johns.  134  ;  John- 
son /;.  Dalton,  1  Cow.  o43.  The  decisions  of  this  court  (well  sustained 
by  high  authority)  establish  the  doctrine  that  the  courts  of  this  State 
will  not  undertake  to  adjudicate  rights  which  originated  in  another 
State  or  country,  under  statutes  materially  different  from  the  law  of 
this  State  in  relation  to  the  same  sul)ject.  Railway  Co.  v.  McCormick. 
71  Tex.  6G0  ;  Railway  Co.  r.  Richards,  G8  Tex.  375.  Many  difficulties 
would  present  themselves,  in  an  attempt  to  determine  the  meanincr  of 
the  Mexican  law,  and  to  apply  it  in  giving  redress  to  the  parties  claim- 
ing rights  under  it.  We  understand  the  Mexican  courts  are  not  gov- 
eined  by  precedent,  and  we  have  no  access  to  reports  of  adjudicated 
cases  of  those  courts,  from  which  we  could  ascertain  their  interpreta- 
tion of  these  laws.     The   language  of  some  of  the  articles  quoted  is 

^  Part  of  tilt;  opiriiuii  is  omitted.  —  Eu. 


524  MEXICAN    NATIONAL    RAILROAD    V.    JACKSON.       [CHAP.    IT. 

ambiguous,  and  we  find  great  difficult}^  in  determining  what  would  be  a 
proper  interpretation  of  the  law.  We  might  or  might  not  give  the 
same  effect  to  the  language  that  is  given  to  it  in  the  courts  of  Mexico. 
There  could  be  no  reasonable  certaint}'  that  the  parties'  rights  would 
be  adjusted  here  as  they  would  be  if  the  case  were  tried  in  the  courts 
of  that  country,  which  is  their  right ;  for  it  is  well  settled  that,  if  one 
State  undertakes  to  enforce  a  law  of  another  State,  the  interpretation 
of  that  law  as  fixed  b}'  the  courts  of  the  other  State  is  to  be  followed. 
This  difficult}'  of  itself  furnishes  a  sufficient  reason  for  the  courts  of 
this  State  to  decline  to  assume  jurisdiction  of  this  class  of  cases.  .  .  . 
There  are  other  sufficient  reasons  why  our  courts  should  not  attempt 
to  enforce  the  Mexican  law  in  cases  like  this.  The  reason  which  influ- 
ences the  courts  of  one  State  to  permit  transitorj-  actions  for  torts  to 
be  maintained  therein,  when  the  right  accrued  in  a  foreign  State  or 
countr}',  is  that  the  defendant,  having  removed  from  such  other  State  or 
country,  cannot  be  subjected  to  the  jurisdiction  of  the  courts  where 
the  cause  of  action  arose,  and  as  matter  of  comity,  but  more  especially 
to  promote  justice,  the  courts  of  the  place  where  he  is  found  will  en- 
force the  rights  of  the  injured  party  against  him  because  it  would  be 
unjust  that  the  wrongdoer  should  be  permitted,  by  removing  from  the 
country  where  he  inflicted  the  injury,  to  avoid  reparation  for  the  wrong 
done  by  him.  In  this  case  there  has  been  no  removal  of  the  person  or 
property  of  the  defendant.  Its  railroad  remains,  as  it  was  at  the  time 
of  the  injury,  within  the  jurisdiction  of  the  courts  of  Mexico,  and  it  is 
liable  to  suit  there  according  to  the  laws  of  that  country.  The  reason 
for  permitting  the  action  to  be  prosecuted  in  our  courts  does  not  obtain 
in  this  case.  The  plaintiff  has  voluntarily  resorted  to  the  jurisdiction 
of  our  courts,  when  his  rights  could  be  better  adjudicated  in  Mexico. 
The  Mexican  National  Railroad  is  an  important  public  highway  in  the 
republic  of  Mexico,  by  which  the  commerce  of  that  country  is  largely 
carried  on  with  our  people.  Every  judgment  for  damages  rendered 
against  it  reduces  its  revenues,  which  must,  of  necessity,  be  restored 
through  its  charges  for  transportation  of  persons  and  property,  and,  in 
the  main,  must  be  paid  by  that  people.  It  is  but  just,  and  perhaps 
necessary  to  a  proper  maintenance  of  that  means  of  transportation, 
that  the  country  in  which  it  is  operated  should  determine  the  charges 
to  be  enforced  against  it.  If  Texas  should  open  her  courts  to  all  per- 
sons that  may  be  injured  in  Mexico  in  the  management  of  tliat  railroad 
and  others,  it  may  seriously  affect  the  means  of  commerce  between 
this  State  and  that  republic.  Thus  it  becomes  a  matter  of  public  con- 
cern, and  a  proper  subject  for  our  consideration  in  this  connection,  in 
view  of  the  fact  that  the  railroad  company  is  still  subject  to  that  juris- 
diction. Justice  does  not  demand  the  exercise  of  the  jurisdiction,  and 
comity  between  the  governments  of  this  State  and  Mexico  would  seem 
to  forbid  that  we  should  do  so.  Gardner  v.  Thomas,  14  Johns.  134 ; 
Johnson  v.  Dalton,  1  Cow.  543.  There  are  at  this  time  two  sj'stems 
of  railroads  extending  from  the  borders  of  this  State  into  Mexico,  for 


CHAT.    IV. J  VANGUILBERT   V.   VANDEVlfeRE.  525 

several  hundred  miles  each  ;  and  as  that  countr}'  shall  hereafter  develop, 
and  commerce  between  the  two  countries  become  more  extended,  we 
may  expect  other  lines  to  be  constructed  in  the  same  direction.  If  our 
courts  assume  to  adjust  the  rights  of  parties  against  those  railroads, 
growing  out  of  such  facts  as  in  this  case,  we  will  offer  an  invitation  to 
all  such  persons  who  might  prefer  to  resort  to  tribunals  in  which  the 
rules  of  procedure  are  more  certainly  fixed,  and  the  trial  b}-  jury 
secured,  to  seek  the  courts  of  this  State  to  enforce  their  claims.  Thus 
we  would  add  to  the  alreadj"  overburdened  condition  of  our  dockets  in 
all  the  courts,  and  thereby  make  the  settlement  of  rights  originating 
outside  the  State,  under  the  laws  of  a  different  government,  a  charge  upon 
our  own  people.  If  the  facts  showed  that  this  was  necessar}*  in  order 
to  secure  justice,  and  the  laws  were  such  as  we  could  properl}'  enforce, 
this  consideration  would  have  but  little  weight ;  but  we  feel  that  it  is 
entitled  to  be  considered  where  the  plaintiff  chooses  this  jurisdiction 
as  a  matter  of  convenience  and  not  of  necessity.  We  conclude  that 
the  District  Court  and  the  Court  of  Civil  Appeals  erred  in  not  dismiss- 
ing this  case,  under  the  proof  made,  for  which  error  the  judgments  of 
both  of  said  courts  are  reversed,  and  this  cause  is  dismissed.^ 


VANGUILBERT  v.   VANDEVi:feRE. 

Civil  Tribunal  of  Lille.     1855. 

[Reported  12  Clunet,  291.] 

The  Tribunal.  Vandeviere,  sued  by  Vanguilbert  in  debt  for  butch- 
er's-meat,  denied  the  jurisdiction  of  the  court  for  the  reason  that  it  was 
a  suit  between  foreigners,  of  a  personal  and  transitory  nature.  No 
authorization  was  shown  for  the  parties  to  establish  their  domicile  in 
France ;  but  both  had  engaged  in  commerce  there  for  several  years, 
and  ma^'  be  considered  as  having  their  domicile  there,  and  as  having 
reciprocally  submitted  themselves,  as  to  the  execution  of  their  obliga- 
tions, to  the  jurisdiction  of  the  French  courts.  For  these  reasons  the 
plea  to  the  jurisdiction  is  overruled. 

1  But  see  Mexican  Central  Ry.  v.  Mitten,  13  Tex.  Civ.  App.  653,  36  S.  "W.  282. 
lu  that  case  Fly,  J.,  said:  "Our  courts  either  have  jurisdiction  of  the  class  of  cases 
we  are  discussing,  or  they  have  not ;  and  the  question  of  whether  a  man  has  volun- 
tarily resorted  to  our  courts,  or  been  forced  into  them,  or  whether  commenio  between 
Mexico  and  Texas  will  V>c  injured  or  protected  l)y  compelling  the  payment  by  a  cor- 
poration of  damages  for  the  wrongs  it  has  inflicted,  or  the  condition  of  our  dockets, 
i;an  have  no  weight  or  force  in  <letermitiing  jurisdiction.  These  are  considerations 
that  might  possibly  address  themselves  to  the  notice  of  legislatures,  but  not  to  the 
determination  of  courts.  Courts  are  not  at  liberty  to  assume  or  decline  jurisdiction 
upon  speculative  grounds,  or  for  reasons  of  public  policy.  Percival  v.  Ilickey,  18 
Johns.  2.'J7." 

See  also  Evey  v,  Mexican  Central  liy.,  81  Fed.  294  ;  Western  Union  Tel.  Co.  v. 
Clark,  14  Tex.  Civ.  App.  563,  38  S.  W.  225.  —  Ed. 


526  KOWALSKI    V.    MOCALUVO.  [CHA.P.    IV. 


KOWALSKI   V.    MOCALUVO. 
Ci\aL  Ti.iBUNAL  OF  THE  Seine.     1885. 

[Rei)orted  12  Clunet,  176.] 

M.  KowALSKi,  residing  at  Paris,  in  riglit  of  tlie  firm  of  Hertz,  sued 
Sieur  Mocaluvo,  a  foreigner  residing  in  France,  for  the  sum  of  375 
francs,  being  the  rent  of  a  piano.  M.  Mocahivo  set  up  a  plea  to  the 
jurisdiction,  on  the  ground  that  the  suit  was  between  two  foreigners. 
The  Tribunal  overruled  the  plea. 

The  Tribunal.  Though  as  a  general  rule  the  French  courts,  having 
been  established  to  judge  the  disputes  of  natives,  have  no  jurisdiction 
to  determine  suits  between  foreigners  not  authorized  to  reside  in  France, 
it  is  different  when,  in  a  question  involving  acts  of  commerce,  the  for- 
eign defendant  has  accepted  the  jurisdiction  of  the  French  courts,  either 
expressl}'  or  by  implication. 

In  hiring  a  piano  at  the  Hertz  establishment,  Mocaluvo  has  obvi- 
ousl}'  elected  at  Paris  a  domicile  for  the  execution  of  his  contract,  and 
has  submitted  to  the  jurisdiction  of  the  French  courts  ;  especially  since 
he  cannot  indicate  a  foreign  domicile  where  he  may  be  sued,  alleging 
only  that  he  was  born  in  Sicily.  Kowalski,  substituted,  by  judgment 
of  the  Tribunal  of  Commerce  of  Paris,  22  June,  1882,  to  the  rights  of 
the  firm  of  Hertz  against  Mocaluvo,  may  sue  him  before  the  Tribunal 
of  the  Seine. 

This  firm,  and  its  successor  Kowalski,  did  an  act  of  commerce  in 
letting  and  eventually  selling  a  piano  to  Mocaluvo.  France,  in  permit- 
ting foreigners  to  establish  themselves  within  her  territory  and  there  to 
engage  in  commerce,  assures  them  by  implication  her  protection  for  the 
enfor'cement  of  contracts  good  by  the  law  of  nature  made  between 
them  within  her  territory,  while  engaged  in  commerce.  It  would  be 
otherwise  if  the  suit  concerned  the  personal  status  of  foreigners  and  the 
application  of  the  laws  of  their  own  countries. 

For  these  reasons  the  Tribunal  declares  itself  competent,  condemns 
Mocaluvo  to  the  costs  of  this  hearing,  and  continues  the  case  for  hear- 
ino;  on  the  merits. 


CHAPTER  V. 
PROCEDURE. 


DE  LA  VEGA   v.   VIANNA. 

King's  Bench.     1830. 

[Reported  1  Barncwall  <t  Adolphus,  284.J 

Lord  Tenterden,  C.  J.^  This  was  an  application  to  discharge  the 
<lefendant,  who  had  been  arrested  upon  mesne  process,  out  of  custody 
on  filing  common  bail.  The  plaintiff  and  defendant  were  both  foreign- 
ers ;  the  debt  was  contracted  in  Portugal,  and  it  appears  that,  by  the  law 
of  that  country,  the  defendant  would  not  have  been  liable  to  arrest.  It  is 
contended  on  the  authority  of  Melan  v.  The  Duke  de  Fitzjames,  1  B.  &  P. 
139,  that  he  is  entitled  to  the  relief  now  sought.  We  are,  however,  of 
opinion,  that  he  is  not.  In  the  case  just  mentioned,  the  distinction  taken 
by  Mr.  Justice  Heath,  who  differed  from  the  other  judges,  was,  that  in 
construing  contracts  the  law  of  the  country  in  which  they  are  made 
must  govern,  but  that  the  remedy  upon  them  must  be  pursued  by  such 
-means  as  the  law  points  out  where  the  parties  reside.  This  doctrine  is 
said  to  correspond  with  the  opinions  of  Huber  and  Voet.  I  have  not 
had  an  opportunity  of  looking  into  those  authorities,  but  we  think,  on 
consideration  of  the  present  case,  that  the  distinction  laid  down  by  Mr. 
Justice  Heath  ought  to  prevail.  A  person  suing  in  this  country  must 
take  llie  law  as  he  finds  it ;  he  cannot,  by  virtue  of  any  regulation  in 
his  own  country,  enjoy  greater  advantages  than  other  suitors  here,  and 
he  ought  not  therefore  to  be  deprived  of  any  superior  advantage  which 
tlie  law  of  this  country  may  confer.  He  is  to  have  the  same  rights 
which  all  the  subjects  of  this  kingdom  are  entitled  to.  The  rule  must 
be  discharged.  Hule  discharged."^ 

1  The  ophiion  only  Is  given  ;  it  sufficiently  states  the  case.  — Ed. 
'^  Aa:.    Irulay  v.  Ellefsen,  2  Ka.st,  4.53  ;  Atwater  v.  Townsend,  4  Conn.  47  ;  Smith  v. 
Spinolla,  2  Johns.  198;  Anon.  (Austria,  12  Dec.  1876),  8  Clunet,  176.  —  Ed. 


528  BULLOCK   V.   CAIRD.  [CHAP.    V. 


BULLOCK  V.  CAIRD. 

Queen's  Bench.     1875. 

{Reported  Law  Reports,  10  Queen's  Bench,  276.] 

Action  by  the  plaintiffs  against  the  defendant  for  the  breach  of  an 
agreement  to  build  a  ship. 

The  material  part  of  the  agreement,  wnicn  was  set  out  in  the  declara- 
tion, was  as  follows  :  — 

"  Glasgow,  July  15th,  1874.  Messrs.  Caird  &  Co.,  shipbuilders, 
Greenock,  agree  to  build  for  Messrs.  James  and  George  Bullock  &  Co., 
London,  who  agree  to  accept  an  iron  sailing  ship  of  the  following  dimen- 
sions, &c."  Throughout  the  agreement  the  parties  were  mentioned  as 
Caird  &  Co.  and  Bullock  &  Co. 

Plea,  that  there  was  a  trading  partnership  or  firm  domiciled  and 
carrying  on  business  in  Scotland  by  the  name  of  Caird  &  Co.,  and  the 
alleged  agreement  was  an  agreement  made  in  Scotland  by  the  plaintiffs 
with  the  firm,  and  was  to  be  performed  wholly  in  Scotland  without  the 
jurisdiction  of  the  English  courts  and  within  the  jurisdiction  of  the 
Scotch  courts,  and  by  the  law  of  Scotland  the  firm  was  and  is  a  sepa- 
rate and  distinct  person  from  any  or  the  whole  of  the  individual  members 
of  whom  it  consists  and  of  whom  the  defendant  was  and  is  one,  and  the 
firm,  by  the  law  of  Scotland,  is  capable  of  maintaining  the  relation  of 
debtor  and  creditor  separate  and  distinct  from  the  obligation  of  the 
partners  as  individuals,  and  can  hold  property,  and  has  the  capacity  of 
suing  and  being  sued  as  such  separate  person  by  its  name  of  Caird  & 
Co.,  and  the  alleged  agreement  was  made  by  the  firm  as  such  separate 
person  and  not  jointly  and  severally  by  the  individual  members  thereof; 
that  at  the  date  of  the  agreements  the  firm  consisted  of  certain  individ- 
uals, namely,  the  defendant  James  Tennant  Caird  and  Patrick  Tennant 
Caird,  and  has  always  since  consisted  and  still  consists  of  the  same 
members,  and  the  firm  and  each  of  its  individual  members  then  was  and 
always  since  has  been  and  still  is  domiciled  and  carrying  on  business 
in  Scotland,  and  within  and  subject  to  the  jurisdiction  of  the  Scotch 
courts  and  possessed  of  sufficient  property  and  funds,  within  and  sub- 
ject to  the  jurisdiction  to  answer  in  full  the  claim  of  the  plaintiffs  ;  that 
by  the  law  of  Scotland  the  defendant  became  and  was,  as  a  partner  of 
the  firm  of  Caird  &  Co.,  on  the  making  of  the  agreement,  liable  to  the 
plaintiffs  for  the  satisfaction  of  any  judgment  which  might  be  obtained 
against  the  firm  or  the  whole  of  the  individual  partners  thereof  jointly 
for  any  breaches  of  the  agreement ;  and  save  as  aforesaid  no  liability  by 
the  law  of  Scotland  attached  or  attaches  to  the  defendant  in  respect  of 
the  agreement ;  that  by  the  law  of  Scotland  it  is  a  condition  precedent 
to  any  individual  liability  attaching  to  the  defendant  or  any  individual 
members  of  the  firm  in  respect  of  the  agreements  that  the  firm  as  such 
person  as  aforesaid  or  the  whole  individual   partners  thereof  jointly 


CHAP,    v.]  LE    KOY    V.    BEAKD.  629 

Should  first  have  been  sued,  aud  that  judgment  should  have  been  re- 
Jove  ed  against  the  firm  or  the  whole  of  the  said  par  ners  jointly,  and 
that  the  pbiutifis  have  not  sued  the  firm  of  Caird  &  Co  nor  the  whole 
„  the  partners  jointly,  nor  recovered  judgment  against  it  or  them. 


Demurrer  to  the  plea  and  joinder.'  .f.„;,H  .<  To  .ire  not 

Rlackbukx,  J.  It  is  quite  clear  that  the  firm  of  Caird  &  Co.  are  not 
a  bo<h  corpo  ate.  The  plea  alleges  that  the  firm,  or  the  whole  Indi- 
vid^ partners  thereof  johitlv,  should  first  have  been  sued.  If  one  of 
he  membeTs  of  the  firm  was  "not  joined  it  might  be  a  bar  to  an  action 
n  srtTand,  but  it  could  only  be  ple,aded  in  abatement  in  an  action  in 
England.  I  think  all  the  matters  stated  in  the  plea  are  mere  matter  of 
procedure,  and  that  the  plea  is  bad. 

Mellor  and  Field,  J  J.,  concurred.  ,...vr„i 

Judgment  for  the  plaintiffs.^ 


LE  ROY   V.   BEARD. 

Supreme  Court  of  the  United  States.     1849. 

[Reported  8  Howard's  Reports,  451.] 

Woodbury,  J.«  This  was  an  action  of  assumpsit  for  money  had  and 
recdvedT  and  also  counting  specially,  that,  on  the  17th  of  November 
1836,  the  original  defendant,  Le  Roy,  in  consideration  of  ^I'^O^  ^^^^ 
paid  to  him  by  the  original  plaintiff,  Beard,  caused  to  be  -^e  to  ^Ue 
fatter,  at  Milwaukie,  Wisconsin,  a  conveyance,  signed  by  Le  Ro>  ^^^^ 
his  wife,  Charlotte.  This  conveyance  was  of  a  certain  lot  of  land 
situated  in  Milwaukie,  and  contained  covenants  that  they  were  s^zed 
in  fee  of  the  lot,  and  had  good  right  to  convey  the  same.  ^^J^^^eas  it 
was  averred,  that,  in  truth,  they  were  not  so  seized,  nor  -"thonzed  to 
convey  the  premises,  and  that  thereby  Le  Roy  became  liable  to  repay 

^^  Under^Leral  instructions  given  by  the  Circuit  Court  for  the  South- 
ern District  of  New  York,  where  the  suit  was  instituted,  the  jury  found 
a  verdict  for  the  original  plaintiff,  on  which  judgment  was  rendered  in 
his  favor,  and  which  tlie  defendant  now  seeks  to  reverse  by  writ  of 
error.     Among  those   instructions,   whicli   were   excepted   to   by   the 

1   A  rmirnciits  of  counsel  are  omitted.  —  Kn.  ,.    .       „ 

.  if  Taal  Ward,  106  Mass.  518  ;  Henry  Briggs  Sons  &  Ca  .  Niven  (Antwerp 
22  July  1893),  21  Clunet,  1080.  Sec  Carnegie  ..  Morrison  2  Met.  381.  ^^«  «»  *' " 
fue'Si  either  an  assignee  of  a  ckose  in  action  ru.y  .sue  in  Ins  own  nan.e.  Roos^  .._ 
Crist  17  111.  450  ;  Foss  v.  Nutting.  14  Gray,  484  ;  Lodge  i;.  heirs.  2  C.u.  Cas.  3-1  , 
see  £evv  .Levy  78  I'a.  507.  Whether  an  assignee  for  creditors  .nay  sue  in  his  o..i 
see  ^^''y\-l^^''J''  145  u.  S.   499  ;  Osborn  v.  First  Nat.  Hank,  1/5  Pa.  494, 

TmI.  Ss      So  of  tit  V  a  -rried  wor^an  in  her  own  name.     Stoneraan  v.  Lne 
Ry.,  52  N.  Y.  429.  —  Ed. 

»  Part  of  the  opinion  only  is  given.  —  Ed. 

34 


530  HAMILTON    V.    SCHOENBEKGER,  [CHAP.    V. 

defendant,  and  are  at  this  time  to  be  considered,  was,  first,  that  "  the 
action  of  assumpsit  is  properly  brought  in  this  court,  upon  the  promises 
of  the  defendant  contained  in  the  deed,  if  any  promises  are  made 
therein  which  are  binding  or  obligator}'  on  the  defendant." 

The  conveyance  in  this  case  was  made  in  the  State  of  Wisconsin, 
and  a  scrawl  or  ink  seal  was  atiixed  to  it,  rather  than  a  seal  of  wax  or 
wafer.  By  the  law  of  that  State,  it  is  provided,  that  "  any  instrument, 
to  which  the  person  making  the  same  shall  affix  any  device,  by  way  of 
seal,  shall  be  adjudged  and  held  to  be  of  the  same  force  and  obligation 
as  if  it  were  actually  sealed." 

But  in  the  State  of  New  York  it  has  been  repeatedly  held  (as  in 
Warren  v.  Lynch,  5  Johns.  239)  that,  by  its  laws,  such  device,  without 
a  wafer  or  wax,  are  not  to  be  deemed  a  seal,  and  that  the  proper  form 
of  action  must  be  such  as  is  practised  on  an  unsealed  instrument  in  the 
State  where  the  suit  is  instituted,  and  the  latter  must  therefore  be 
assumpsit.  12  Johns.  198;  2  Hill,  228,  544;  3  Hill,  493;  1  Denio, 
376  ;  5  Johns,  329  ;  Andrews  et  al.  v.  Herriott,  4  Cowen,  508,  overrul- 
ing Meridith  v.  Hinsdale,  2  Caines,  362;  4  Kent,  451  ;  8  Peters,  362; 
Story's  Conflict  of  Laws,  47.  A  Uke  doctrine  prevails  in  some  other 
States.     3  Gill  &  Johns.  234 ;  Douglas  et  al  v.  Oldham,  6  N.  H.  150. 

It  becomes  our  duty,  then,  to  consider  the  instruction  given  here,  in 
an  action  brought  in  the  Circuit  Court  of  ISTew  York,  as  correct  in  rela- 
tion to  the  form  of  the  remedy.  It  was  obliged  to  be  in  assumpsit  in 
the  State  of  New  York,  and  one  of  the  counts  was  special  on  the  prom- 
ise contained  in  the  covenant.  We  hold  this,  too,  without  impairing 
at  all  the  principle,  that,  in  deciding  on  the  obligation  of  the  instrument 
as  a  contract,  and  not  the  remedy  on  it  elsewhere,  the  law  of  Wiscon- 
sin, as  the  lex  loci  contractus^  must  govern.  Robinson  v.  Campbell, 
3  Wheat.  212.i 


HAMILTON  V.  SCHOENBEKGER. 

Supreme  Court  of  Iowa.     1877. 

[Reported  47  Iowa,  385.] 

The  petitioner  alleges  that  a  judgment  had  been  entered  against  him 
in  the  Benton  District  Court  on  a  ''judgment  note,"  upon  confession  of 
judgment  by  an  attorney  of  the  court,  not  authorized  to  appear  for  him 
except  by  the  power  contained  in  the  note  ;  and  asks  that  the  judgment 
be  declared  void  and  cancelled.  The  defendants  demurred  to  this  peti- 
tion.    The  demurrer  was  overruled,  and  judgment  was  rendered  can- 

1  Ace.  Thrasher  v.  Everhart,  3  G.  &  J.  234 ;  Broadhead  v.  Noyes,  9  Mo.  55  ; 
Andrews  v.  Herriott,  4  Cow.  508.     See  Williams  v.  Haines,  27  la.  251.  —  Ed. 


CHAP,    v.]  MINERAL   TOINT    RAILROAD   CO.    V.   BARRON.  531 

celling  the  judgment  in  favor  of  defendants  against  plaintiflf.  The 
defendants   appeal.^ 

Day,  C.  J.  So  far  as  we  are  advised  it  has  never  been  the  under- 
standing of  the  profession  nor  of  the  business  coiutnunity  in  this  State 
that  warrants  of  attorney  to  confess  judgment  had  any  place  in  our  law. 
A  confession  of  judgment  pertains  to  the  remedy.  A  party  seeking  to 
enforce  here  a  contract  made  in  another  State  must  do  so  in  accordance 
with  the  laws  of  this  State.  Parties  cannot  by  contract  made  in  another 
State  engraft  upon  our  procedure  here  remedies  which  our  laws  do  not 
contemplate  nor  authorize. 

We  are  fully  satisfied  that  the  demurrer  to  the  petition  was  properly 
overruled.  Affirmed. 


MINERAL  POINT  RAILROAD   CO.  v.   BARRON. 

Supreme  Col'rt  of  Illinois.     1876. 

[Reported  83  Illinois,  363. J 

Craig,  J.-  Lender  the  laws  of  Wisconsin,  had  the  proceedings  been 
instituted  in  that  State,  the  wages  of  the  defendant  in  the  original  ac- 
tion were  exempt  from  garnishment,  and  it  is  urged  by  appellant,  that, 
as  the  parties  resided  in  that  State  and  the  debt  was  there  incurred,  the 
exemption  laws  of  Wisconsin  must  control,  although  the  proceedings 
for  the  collection  of  the  debt  were  commenced  in  this  State. 

It  is  true,  the  validity  of  a  contract  is  to  be  determined  by  the  law  of 
the  place  where  it  is  made,  but  the  law  of  the  remed}*  is  no  part  of  the 
contract,  as  is  well  said  b}'  Parsons  on  Contracts,  vol.  2,  page  588 : 
"But  on  the  trial,  and  in  respect  to  all  questions  as  to  the  forms  or 
methods,  or  conduct  of  process  or  remedy,  the  law  of  the  place  of  the 
forum  is  applied." 

In  Sherman  v.  Gassett,  4  Gilman,  521,  after  referring  to  a  number  of 
cases  in  illustration  of  the  rule,  it  is  said  :  "  The  cases  above  referred 
to,  although  not  precisely  analogous,  yet  settle  the  principle  that  the 
Irx  lor!,  only  governs  in  ascertaining  whether  the  contract  is  valid,  and 
wiiat  the  words  of  the  contract  mean.  Wlion  the  question  is  settled 
tliat  the  contract  of  the  parties  is  legal,  and  what  is  the  true  interpreta- 
tion of  the  language  employed  by  the  parties  in  framing  it,  tlu;  h;.r  hu-i 
ceases,  and  tlie  hx  fori  steps  in  and  determines  the  time,  the  mode.  .mikI 
the  extent  of  the  lomody." 

Statutes  of  limitations  fixing  the  time  within  whicli  an  action  may  bi; 
brought,  laws  providing  for  a  .set-off  in  certain  .actions,  and  statutes 
providing  that  certain  articles  of  personal  proi)ert3',  wearing  apparel, 

^  The  Ktiiti-mctit  of  lacts  liiis  1)itii  iiliiiil«i'(l,  mikI  piut  of  the  opinion  oinitti'il. —  V.u. 
'  Part  of  the  opinion  onl}'  is  ;{ivi'n.  —  Ku. 


532  GIBB^  V,    HOWARD.  [cHaP.   V. 

farming  implements,  and  the  tools  of  a  mechanic  shall  be  exempt  from 
levy  and  sale  upon  execution,  have  always,  so  far  as  our  observation 
goes,  been  regarded  by  courts  as  regulations  affecting  the  remedy  which 
might  be  enacted  by  each  State,  as  the  judgment  of  the  legislature  might 
think  for  the  best  interests  of  the  people  thereof.  Bronson  v.  Kinzie, 
1  Howard,  311. 

The  statute  of  Wisconsin,  under  which  appellant  was  not  liable  to  be 
garnisheed,  was  a  law  affecting  merel}'  the  remedy  where  an  action 
should  be  brought  in  the  courts  of  that  State.  That  law,  however,  can- 
not be  invoked  where  the  remedy  is  sought  to  be  enforced  in  the  courts 
of  this  State.  The  remedy  must  be  governed  by  the  laws  of  the  State 
where  the  action  is  instituted.^ 


GIBBS   V.   HOWARD. 
Superior   Court  of  Judicature,   New  Hampshire.    1820. 

[Reported  2  New  Hampshire,  296.] 

This  was  an  action  of  assumpsit  upon  a  note  of  hand,  dated  Septem- 
ber 29,  1817,  for  $57,  made  by  Howard,  and  payable  to  Almon  Burgess, 
or  order,  in  the  month  of  April,  1818  ;  and  on  the  31st  of  October, 
1817,  indorsed  by  Burgess  to  Patience  Cone,  then  sole,  now  the  wife 
of  Gibbs,  the  plaintiff. 

The  defendant  pleaded  the  general  issue,  and  gave  notice  of  a  set-off 
consisting  of  three  notes  of  hand,  made  by  Almon  Burgess,  and  pa}'- 
abJe  to  three  several  persons,  and  by  them  indorsed  to  the  defendant, 
November  1,  1817. 

The  cause  was  submitted  to  the  decision  of  the  court  upon  the  fol- 
lowing facts.  The  note  described  in  the  declaration  was  made  by 
Howard,  and  at  the  time  when  made,  the  original  parties  to  it  were 
both  inhabitants  of  the  State  of  Vermont.  The  same  note  was  for  a 
valuable  consideration  indorsed  to  Patience  Cone,  then  an  inhabitant  of 
Vermont,  before  it  became  due,  and  before  the  defendant  had  any  inter- 

1  Ace.  Chic,  R.  I.  &  P.  Ry.  v.  Sturm,  174  U.  S.  170  ;  Boykin  v.  Edwards,  21  Ala. 
261  ;  Broadstreet  v.  Clark,  "65  la.  670;  B.  &  M.  R.  R.  v.  Thompson,  31  Kan.  180, 
1  Pac.  622  ;  Morgan  v.  Neville,  74  Pa.  52.  But  see  Mo.  P.  Ry.  v.  Sharitt,  43  Kan. 
385,  23  Pac.  430  ;  Drake  v.  L.  S.  &  M.  S.  Ry.,  69  Mich.  168,  179,  37  N.  W.  70.  In 
the  last  case,  Morse,  J.,  said  :  "  It  must  be  held,  I  think,  not  only  as  a  matter  of  sim- 
ple justice,  but  as  sound  law,  which  means  justice,  that  where  the  creditor,  debtor,  and 
garnishee,  at  the  time  of  the  creation  of  both  debts,  are  all  residents  and  doing  business 
in  Indiana,  and  both  debts  are  created,  and  intended  to  be  payable,  in  that  State,  the 
exemption  of  wages  is  such  an  incident  and  condition  of  the  debt  from  the  employer 
that  it  will  follow  the  debt,  if  the  debt  follows  the  person  of  the  garnishee  into  Michi- 
gan, and  attach  itself  to  every  process  of  collection  in  this  State,  unless  jurisdiction  is. 
obtained  over  the  person  of  the  principal  debtor ;  that  it  becomes  a  vested  right  in  rem, 
which  follows  the  debt  into  any  jurisdiction  where  the  debt  may  be  considered  as 
going.  —  Ed. 


CHAP,    v.]  TOWNSEND    V.    JEMISON.  533 

est  in  the  notes  mentioned  in  the  set-off.  Gibbs  is  an  inhabitant  of 
Massachusetts.  There  is  a  statute  of  Vermont,  passed  on  the  31st 
October,  1798,  by  which  it  is  enacted,  "  that  in  all  actions  on  indorsed 
notes  it  shall  be  lawful  for  the  defendant  to  plead  an  offset  of  all  de- 
mands proper  to  be  plead  in  offset  which  the  defendant  may  have 
acrainst  the  original  payee,  before  notice  of  such  an  indorsement 
against  the  indorsee,  and  may  also  plead  or  give  in  evidence  on  the 
trial  of  any  such  action,  any  matter  or  thing  which  would  equitably  dis- 
charge  the  defendant  in  an  action  brought  in  the  name  of  the  original 

pavee." 

And  it  was  agreed,  that  if  the  court  should  be  of  opmion  that  the 
defendant  could  not  avail  himself  of  the  set-off  filed  in  the  case,  judg- 
ment should  be  rendered  for  the  plaintiffs  for  the  amount  of  the  note 
<lescribed  in  the  declaration. 

By  the  Court.  It  is  very  clear  that  the  notes,  which  the  defendant 
holds  against  Burgess,  are  not  a  legal  set-off  in  this  action  by  the  laws 
of  this  State  ;  and  it  is  equally  clear,  that  we  can  take  no  notice  of  the 
statute  of  Vermont.  The  lex  loci  must  settle  the  nature,  validity,  and 
interpretation  of  contracts,  but  it  extends  no  further.  The  laws  of  the 
State  in  which  contracts  are  attempted  to  be  enforced,  must  settle  what 
is  the  proper  course  of  judicial  proceedings  to  enforce  them.  The  stat- 
ute of  Vermont  relates  merely  to  the  remedy,  by  which  a  contract  may 
be  enforced.  There  must,  therefore,  according  to  the  agreement  of  the 
parties,  be  Judgment  for  the  plaintiff} 


TOWNSEND   V.    JEMISON. 
Supreme  Court  of  tiik  Unitkd  States.     1849. 

{Reported  9  Howard's  Reports,  407.] 

Wayne,  J.^  This  suit  has  been  brought  here  from  the  District 
Court  of  the  United  States  for  the  Middle  District  of  Alabama.  The 
defendant  in  the  court  below,  the  plaintiff  here,  besides  other  pleas, 
pleaded  that  the  cause  of  action  accrued  in  Mississippi  more  than 
three  years  before  the  suit  was  brought;  and  that  the  Mississipi)i 
statute  of  limitations  barred  a  recovery  in  the  District  Court  of  Ahi- 
bama.     The  plaintiff  denmrred  to  the  plea.     The  court  sustained  the 

<lemurrer. 

We  do  not  think  it  necessary  to  do  more  tlian  to  decide   this  point 

in  the  case. 

The  rule  in  the  courts  of  tlie  United  States,  in  respect  to  pleas  of 
the  statutes  of  limitation,  has  always  been,  that  they  strictly  affect  the 

1  Jrc.  .Mcy.T  V.  Dn-ssci-,  !»>  C.  B.  N.  s.  646  (ncmhl,) ;  Savcry  v.  Savery,  3  la.  271  ; 
Davis  V.  Morton,  (>  liusli,  160. —  Ei>. 

*  The  opinion  only  is  given  ;  it  sufliciently  slates  the  case.  —  Ku. 


534  TOWNSEND    V.   JEMISON.  [CHAP.   V. 

remed}',  and  not  the  merits.  In  the  case  of  McElmoyle  r.  Cohen,  13 
Peters,  312,  this  point  was  raised,  and  so  decided.  All  of  the  judges 
were  present  and  assented.  The  fullest  examination  was  then  made 
of  all  the  authorities  upon  the  subject,  in  connection  with  the  diversi- 
ties of  opinion  among  jurists  about  it,  and  of  all  those  considerations 
which  have  induced  legislatures  to  interfere  and  place  a  limitation  upon 
the  bringing  of  actions. 

We  thought  then,  and  still  think,  that  it  has  become  a  formulary  in 
international  jurisprudence,  that  all  suits  must  be  brought  within  the 
period  prescribed  by  the  local  law  of  the  country  where  the  suit  is 
brought,  —  tlie  lex  fori ;  otherwise  the  suit  would  be  barred,  unless 
the  plaintiff  can  bring  himself  within  one  of  the  exceptions  of  the 
statute,  if  that  is  pleaded  by  the  defendant.  This  rule  is  as  fully 
recognized  in  foreign  jurisprudence  as  it  is  in  the  common  law.  We 
then  referred  to  authorities  in  the  common  law,  and  to  a  summary 
of  them  in  foreign  jurisprudence.  Burge's  Com.  on  Col.  and  For. 
Laws.  They  were  subsequently  cited,  with  others  besides,  in  the 
second  edition  of  the  Conflict  of  Laws,  483.  Among  them  will  be 
found  the  case  of  Leroy  v.  Crowninshield,  2  Mason,  151,  so  much 
relied  upon  by  the  counsel  in  this  case. 

Neither  the  learned  examination  made  in  that  case  of  the  reasoning 
of  jurists,  nor  the  final  conclusion  of  the  judge,  in  opposition  to  his 
own  inclinations,  escaped  our  attention.  Indeed,  he  was  here  to 
review  them,  with  those  of  us  now  in  the  court  who  had  the  happiness 
and  benefit  of  being  associated  with  him.  He  did  so  with  the  same 
sense  of  judicial  obligation  for  the  maxim,  Stare  decisis  et  non  quieta 
movere,  which  marked  his  official  career.  His  language  in  the  case  in 
Mason  fully  illustrates  it:  "  But  I  do  not  sit  here  to  considar  what  in 
theory  ought  to  be  the  true  doctrines  of  the  law,  following  them  out 
upon  principles  of  philosophy  and  juridical  reasoning.  My  humbler 
and  safer  duty  is  to  administer  the  law  as  I  find  it,  and  to  follow  in 
the  path  of  authority,  where  it  is  clearly  defined,  even  though  that 
path  may  have  been  explored  by  guides  in  whose  judgment  the  most 
implicit  confidence  might  not  have  been  originally  reposed."  Then 
follows  this  declaration  :  "  It  does  appear  to  me  that  the  question  now 
before  the  court  has  been  settled,  so  far  as  it  could  be,  by  authorities 
which  the  court  is  bound  to  respect."  The  error,  if  any  has  been 
committed,  is  too  strongly  engrafted  into  the  law  to  be  removed  with- 
out the  interposition  of  some  superior  authority.  Then,  in  support  of 
tliis  declaration,  he  cites  Huberus,  Voet,  Pothier,  and  Lord  Karnes, 
and  adjudications  from  English  and  American  courts,  to  show  that, 
whatever  may  have  been  the  differences  of  opinion  among  jurists,  the 
uniform  administration  of  the  law  has  been,  that  the  lex  loci  contractus 
expounds  the  obligation  of  contracts,  and  that  statutes  of  limitation 
prescribing  a  time  after  which  a  plaintiff  shall  not  recover,  unless  he 
can  bring  himself  within  its  exceptions,  appertain  ad  tempiis  et  modum 
actionis  instltuendce   and    not   ad  valorem  contractus.     Williams  v. 


CIIAr.   v.]  TOWNSEND    V.   JEMISON.  535 

Jones,  13  East,  439 :  Nash  c.  Tupi)er,  1  Caines,  402 ;  Ruggles  v. 
Keeler,  3  Johns.  263  ;  Pearsall  r.  Dwight,  2  Mass.  84 ;  Decouche 
r.  Savetier,  3  Johns.  Ch.  190,  218  ;  McCluny  v.  Silliman,  3  Peters, 
2*76  ;  Hawkins  v.  Barney,  5  Peters,  457  ;  Bank  of  the  United  States 
V.  Donnally,  8  Peters,  361 ;  McElmoyle  v.  Cohen,  13  Peters,  312. 

There  is  nothing  in  Slielby  v.  Guy,  11  Wheaton,  361,  in  conflict  with 
what  this  court  decided  in  the  four  last-mentioned  cases.  Its  aclion 
upon  the  point  has  been  uniform  and  decisive.  In  cases  before  and 
since  decided  in  England,  it  will  be  found  there  has  been  no  fluc- 
tuation in  the  rule  in  the  courts  there.  The  rule  is,  that  the  statute  of 
limitations  of  the  country  in  which  the  suit  is  brought  may  be  pleaded 
to  bar  a  recovery  upon  a  contract  made  out  of  its  political  jurisdiction, 
and  that  the  limitation  of  the  lex  loci  contractus  cannot  be.  2  Bing- 
ham, New  Cases,  202,  211  ;  Don  v.  Lippman,  5  Clark  &  Fin.  1,  16, 
17.  It  has  become,  as  we  have  already  said,  a  fixed  rule  of  the  Jus 
(jentium  privatum,  unalterable,  in  our  opinion,  either  in  England  or  in 
the  States  of  the  United  States,  except  by  legislative  enactment. 

We  will  not  enter  at  large  into  the   learning  and   philosophy  of  the 
question.     We  remember  the  caution  given  by  Lord  Stair  in  the  sup- 
plement to  his  Institutes  (p.  852),  about  citing  as  authorities  the  works 
and  publications  of  foreign  jurists.     It  is  appropriate  to  the  occasion, 
having  been  written  to  correct  a  mistake  of  Lord  Tenterden,  to  whom 
no  praise  could  be  given  which  would  not  be  deserved  by  his  equally 
distinguished  contemporary.  Judge  Story.     Lord  Stair  says:  "There 
is  in  Abbott's  Law  of  Shipping  (5th  edition,  p.  365)  a  singular  mis- 
take ;    and,  considering  the  justly   eminent  character  of  the  learned 
author  for  extensive,  sound,  and  practical  knowledge  of  the  English 
law,  one  which  ought  to  operate  as  a  lesson  on  this  side  of  the  Tweed,  as 
well  as  on  the  other,  to  be  a  little  cautious  in  citing  the  works  and  pub- 
lications of  foreign  jurists,  since,  to  comprehend  their  bearings,  such 
a  knowledge  of  the  foreign  law  as  is   scarcely  attainable  is  absolutely 
requisite.     It  is  magnificent  to  array  authorities,  but  somewhat  humili- 
ating to  be  detected  in  errors  concerning  them  ;  —  yet  how  can  errors  be 
avoided  in  such  a  case,  when  every  day's  experience  warns  us  of  the 
prodigious  study  necessary  to  the  attainment  of  proficiency  in  our  own 
law?  °  My  object  in  adverting  to  the  mistake  in  the  work  referred  to  is, 
not  to  depreciate  the  author,  for  whom   I  entertain  unfeigned   respect, 
but  to  show  that,  since  even  so  justly  distinguished  a  lawyer  fails  when 
he  travels  beyond  the  limits  of  his  own  code,  the  attempt  must  bo  infi- 
nitely hazardous  with  others." 

We  will  now  venture  to  suggest  the  causes  which  misled  the  learned 
judge  in  Leroy  v.  Crowninshield  into  a  conclusion,  that,  if  the  question 
before  him  had  been  entirely  new,  his  inclination  would  strongly  lead 
him  to  declare,  that  where  all  remedies  arc  barred  or  discharged  by  the 
lex  loci  contractus,  and  have  operated  upon  the  case,  then  the  bar  may 
bo  pleaded  in  a  foreign  tril)un:il,  to  rt-pel  any  suit  brought  to  enforce 
the  d<-ht. 


536  TOWNSEXD    V.    JEMISON.  [CHAP.    V. 

We  remark,  first,  that  onl3'  a  few  of  the  civilians  who  have  written 
upon  the  point  differ  from  the  rule,  that  statutes  of  limitation  relate 
to  the  remed}"  and  not  to  the  contract.  If  there  is  an}-  case,  either  in 
our  own  or  the  English  courts,  in  which  the  point  is  more  discussed 
than  it  is  in  Lero}'  v.  Crowninshield  we  are  not  acquainted  with  it.  In 
every  case  but  one,  either  in  England  or  in  the  United  States,  in  which 
the  point  has  since  been  made,  that  case  has  been  mentioned,  and  it  has 
carried  some  of  our  own  judges  to  a  result  which  Judge  Story  himself 
did  not  venture  to  support. 

We  do  not  find  him  pressing  his  argument  in  Leroy  v.  Crowninshield 
in  the  Conflict  of  Laws,  in  which  it  might  have  been  appropriately 
done,  if  his  doubts,  for  so  he  calls  them,  had  not  been  removed. 
Twenty  years  had  then  passed  between  them.  In  all  that  time,  when 
so  much  had  been  added  to  his  learning,  really  great  before,  that  by 
common  consent  he  was  estimated  in  jurisprudence  ;>«r  summis,  we 
find  him,  in  the  Conflict  of  Laws,  stating  the  law  upon  the  point  in 
opposition  to  his  former  doubts,  not  in  deference  to  authority  alone, 
but  from  declared  conviction. 

The  point  had  been  examined  by  him  in  Leroy  v.  Crowninshield 
without  any  consideration  of  other  admitted  maxims  of  international 
jurisprudence,  having  a  direct  bearing  upon  the  subject.  Among 
others,  that  the  obligation  of  every  law  is  confined  to  the  State  in 
which  it  is  established,  that  it  can  only  attach  upon  those  who  are  its 
subjects,  and  upon  others  who  are  within  the  territorial  jurisdiction  of 
the  State  ;  that  debtors  can  only  be  sued  in  the  courts  of  the  jurisdic- 
tion where  they  are  ;  that  all  courts  must  judge  in  respect  to  remedies 
from  their  own  laws,  except  when  conventionally,  or  from  the  decisions 
of  courts,  a  comity  has  been  established  between  States  to  enforce  in 
the  courts  of  each  a  particular  law  or  principle.  When  there  is  no 
positive  rule,  atfirming,  denying,  or  restraining  the  operation  of  foreign 
laws,  courts  establish  a  comity  for  such  as  are  not  repugnant  to  the 
policy  or  in  conflict  with  the  laws  of  the  State  from  which  they  derive 
their  organization.  We  are  not  aware,  except  as  it  has  been  brought 
to  our  notice  by  two  cases  cited  in  the  argument  of  this  cause,  that  it 
has  ever  been  done,  either  to  give  or  to  take  away  remedies  from 
suitors,  when  there  is  a  law  of  the  State  where  the  suit  is  brought 
which  regulates  remedies.  But  for  the  foundation  of  comity,  the  man- 
ner of  its  exercise,  and  the  extent  to  which  courts  can  allowably  carry 
it,  we  refer  to  the  case  of  the  Bank  of  Augusta  v.  p]arle,  13  Peters, 
519,  589  ;  Conflict  of  Laws,  Comity. 

From  what  has  just  been  said,  it  must  be  seen,  when  it  is  claimed 
that  statutes  of  limitation  operate  to  extinguish  a  contract,  and  for 
that  reason  the  statute  of  the  State  in  which  the  contract  was  made 
may  be  pleaded  in  a  foreign  court,  that  it  is  a  point  not  standing  alone, 
disconnected  from  other  received  maxims  of  international  jurisprudence. 
And  it  may  well  he  a.sked.  before  it  is  determined  otherwise,  whether 
contracts  by  force  of  the  different  statutes  of  limitations  in  States  are 


CHAP,    v.]  TOWNSEND    V.    JEMISON.  537 

not  exceptions  from  the  general  rule  of  the  lex  loci  contractus.  There 
are  such  exceptions  for  dissolving  and  discharging  contracts  out  of  the 
jiiiisdiction  in  which  they  were  made.  The  limitations  of  remedies, 
and  the  forms  and  modes  of  suit,  make  such  an  exception.  Confl.  of 
Laws,  271,  and  524  to  527.  We  ma}'  then  infer  that  the  doubts 
expressed  in  Leroy  v.  Crowninshield  would  have  been  withheld  if  the 
point  had  been  considered  in  the  connection  we  have  mentioned. 

We  have  found,  too,  that  several  of  the  civilians  who  wrote  upon 
the  question  did  so  without  having  kept  in  mind  the  difference  between 
the  positive  and  negative  prescription  of  the  civil  law.  In  doing  so, 
some  of  them  —  not  regarding  the  latter  in  its  more  extended  signifi- 
cation as  including  all  those  bars  or  exceptions  of  law  or  of  fact  which 
may  be  opposed  to  the  prosecution  of  a  claim,  as  well  out  of  the  juris- 
diction in  which  a  contract  was  made  as  in  it  —  were  led  to  the  conclu- 
sion, that  the  prescription  was  a  part  of  the  contract,  and  not  the 
denial  of  a  remed}'  for  its  enforcement.  It  ma}'  be  as  well  here  to 
state  the  difference  between  the  two  prescriptions  in  the  civil  law. 
Positive,  or  the  Roman  usucaptio,  is  the  acquisition  of  property,  real 
or  persona],  immovable  or  movable,  by  the  continued  possession  of  the 
acquirer  for  such  a  time  as  is  described  by  the  law  to  be  sufficient. 
Erskine's  Inst.  556.  '■'■  Adjectio  dominii  per  continuatioriejii  posses 
sionis  temporis  legi  definiti.'"     Dig.  3. 

Negative  prescription  is  the  loss  or  forfeiture  of  a  right  by  the  pro- 
prietor's neglecting  to  exercise  or  prosecute  it  during  the  whole  period 
which  the  law  hath  declared  to  be  sufficient  to  infer  the  loss  of  it.  It 
includes  the  former,  and  applies  also  to  all  those  demands  which  are 
the  subject  of  personal  actions.     Erskine's  Inst.  560,  and  3  Burge,  26. 

Most  of  the  civilians,  however,  did  not  lose  sight  of  the  differences 
between  these  prescriptions,  and  if  their  reasons  for  doing  so  had  been 
taken  as  a  guide,  instead  of  some  expressions  used  by  them,  in  respect 
to  what  may  be  presumed  as  to  the  extinction  or  payment  of  a  claim, 
while  the  plea  in  bar  is  pending,  we  do  not  think  that  any  doubt  would 
have  been  expressed  concerning  the  correctness  of  their  other  conclu- 
sion, that  statutes  of  limitation  in  suits  upon  contracts  only  relate  to 
the  remedy.  But  that  was  not  done,  and,  from  some  expressions  of 
Pothier  and  Lord  Kames,  it  was  said,  "  If  the  statute  of  limitations 
does  create,  ^9ro/>r/o  rigore,  a  presumption  of  the  extinction  or  payment 
of  the  debt,  which  all  nations  ought  to  regard,  it  is  not  easy  to  see  why 
the  presumption  of  such  payment,  thus  arising  from  the  Ux  loci  con- 
tractus, should  not  be  as  conclusive  in  every  other  place  as  in  the  place 
of  the  contract."  And  that  was  said  in  Leroy  /•.  Crowninshield,  in  op- 
position to  the  declaration  of  both  of  tliose  writers,  that  in  any  othei 
place  than  that  of  the  contract  such  a  presumption  could  not  be  made 
to  defeat  a  law  providing  for  proceedings  upon  suits.  Here,  turning 
aside  for  an  instant  from  our  main  purpose,  we  find  the  beginning  or 
source  of  those  constructions  of  tlie  Englisli  statutes  of  limitation 
wliich  almost  made  them  useless  for  the  !iccoi)i|)lishment  of  their  end. 


538  TOWNSEND   V.    JEMISON.  [CHAP.    V. 

Within  a  few  years,  the  abuses  of  such  constructions  have  been  much 
corrected,  and  we  are  now,  in  the  EngHsli  and  American  courts,  nearer 
to  the  legislative  intent  of  such  enactments. 

But  neither  Pothier  nor  Lord  Kames  meant  to  be  understood,  that 
the  theor}'  of  statutes  of  limitation  purported  to  afford  positive  pre- 
sumptions of  payment  and  extinction  of  contracts,  according  to  the 
laws  of  the  place  where  the}-  are  made.  The  extract  which  was  made 
from  Pothier  shows  his  meaning  is,  that,  when  the  statute  of  limitations 
has  been  pleaded  by  a  defendant,  the  presumption  is  in  his  favor  that 
he  has  extinguished  and  discharged  his  contract,  until  the  plaintiff 
overcomes  it  by  proof  that  he  is  within  one  of  those  exceptions  of  the 
statute  which  takes  it  out  of  the  time  after  which  he  cannot  bring  a  suit 
to  enforce  judiciall}'  the  obligation  of  the  defendant.  The  extract 
from  Lord  Kames  only  shows  what  may  be  done  in  Scotland  when  a 
process  has  been  brought  for  payment  of  an  English  debt,  after  the 
English  prescription  has  taken  place.  The  English  statute  cannot  be 
pleaded  in  Scotland  in  such  a  case,  but,  according  to  the  law  of  that 
forum,  it  may  be  pleaded  that  the  debt  is  presumed  to  have  been  paid. 
And  it  makes  an  issue,  in  whicli  the  plaintiff  in  the  suit  ma}'  show  that 
such  a  presumption  does  not  apply  to  his  demand  ;  and  that  without 
any  regard  to  the  prescription  of  time  in  tlie  English  statute  of  limita- 
tion. It  is  upon  this  presumption  of  payment  that  the  conclusion  in 
Leroy  v.  Crowninshield  was  reached,  and  as  it  is  now  universally  ad- 
mitted that  it  is  not  a  correct  theory  for  the  administration  of  statutes 
of  limitation,  we  mav  say  it  was  in  fact  because  that  theory  was 
assumed  in  that  case  that  doubts  in  it  were  expressed,  contrary  to  the 
judo"ment  which  was  given,  in  submission  to  what  was  admitted  to  be 
the  law  of  the  case.  What  we  have  said  may  serve  a  good  purpose. 
It  is  pertinent  to  the  point  raised  by  the  pleading  in  the  case  before  us, 
and  in  our  judgment  there  is  no  error  in  the  District  Court's  having 
sustained  the  demurrer. 

Before  concluding,  we  will  remark  that  nothing  has  been  said  in  this 
case  at  all  in  conflict  with  what  was  said  by  this  court  in  Shelby  r. 
Guy,  11  Wheaton,  361.  The  distinctions  made  by  us  here  between 
statutes  giving  a  right  to  property  from  possession  for  a  certain  time, 
and  such  as  only  take  away  remedies  for  the  recovery  of  property  after 
a  certain  time  has  passed,  confirm  it.  In  Shelby  v.  Guy  this  court 
declared  that,  as  by  the  laws  of  Virginia  five  years'  bova  fide  posses- 
sion of  a  slave  constitutes  a  good  title  upon  which  the  possessor  may 
recover  in  detinue,  such  a  title  may  be  set  up  by  the  vendee  of  such 
possessor  in  the  courts  of  Tennessee  as  a  defence  to  a  suit  brought  by 
a  third  party  in  those  courts.  The  same  had  been  previously  ruled  in 
this  court  in  Brent  v.  Chapman,  5  Cranch,  358 ;  and  it  is  the  rule  in 
all  cases  where  it  is  declared  by  statute  that  all  rights  to  debts  due  more 
than  a  prescribed  term  of  years  shall  be  deemed  extinguished,  and  that 
all  titles  to  real  and  personal  property  not  pressed  within  the  i)rescribed 
time  shall  give  ownership  to  an  adverse  possessor.    Such  a  law,  though 


€HAP.    v.]  TOWNSEND    V.    JEMISON.  539 

one  of  limitation,  goes  directly  to  the  extinguishment  of  the  debt, 
claim,  or-right,  and  is  not  a  bar  to  the  remedy.  Lincoln  v.  Battelle, 
6  Wend.  475  ;  Coufl.  of  Laws,  582. 

In  Lincoln  v.  Battelle,  6  Wend.  475,  the  same  doctrine  was  held.    It 
is  stated  in  the  Conflict  of  Laws,  582,  to  be  a  settled  point.     The  courts 
of  Louisiana  act  upon  it.     We  could  cite  other  instances  in  which  it 
has  been  announced  in  American   courts  of  the  last  resort.     In  the 
cases  of  De  la  Vega  v.  Vianna,  1   Barn.  &  Adol.  284,  and  the  British 
Linen  Company  v.  Drummond,  10  Barn.  &  Cres.  903,  it  is  said  that,  if 
a  French  bill  of  exchange  is  sued  in   England,   it   must   be   sued   on 
according  to  the  laws  of  England,  and  there  the    English  statute  of 
limitations  would  form  a  bar  to  the  demand  if  the  bill  fiad  been  due 
for  more  than  six  years.     In  the  case  of  Don  v.  Lippman,  5  Clark  & 
Fin.  1,  it  was  admitted  by  the  very  learned  counsel  who  argued  that 
case  for  the  defendants  in  error,  that,  though  the  law  for  expounding  a 
contract  was  the  law  of  the  place  in  which  it  was  made,  the  remedy  for 
enforcing  it  must  be  the  law  of  the  place  in  which  it  is  sued.     In  that 
case  will  be  found,   in  the  argument  of  Lord  Brougham  before  the 
House  of  Lords,  his  declaration  of  the  same  doctrine,  sustained  by  very 
cogent  reasoning,  drawn  from  what  is  the  actual  intent  of  the  parties  to 
a  contract  when  it  is  made,  and  from  the  inconveniences  of  pursuing  a 
different  course.     In  Beckford  and  others  v.  Wade,  17  Vesey,  87,  Sir 
William  Grant,  acknowledging  the  rule,  makes  the  distinction  between 
statutes  merely  barring  the  legal  remedy  and  such  as  prohibit  a  suit 
from  being  brought  after  a  specified  time.     It  was  a  case  arising  under 
the  possessory  law  of  Jamaica,  which  converts  a  possession  for  seven 
years  under  a  deed,  will,  or  other  conveyance,  into  a  positive  absolute 
title,  against  all  the  world,— without  exceptions  in  favor  of  any  one  or  any 
rjo-ht,  however  a  party  may  have  been  situated  during  that  time,  or  what- 
ever his  previous  right  of  property  may  have  been.     There  is  a  statute 
of  the  same  kind  in  Rhode  Island.     2  R.  I.  Laws,  363,  364,  ed.  1822. 
In  Tennessee  there  is  an  act  in  some  respects  similar  to  the  possessors- 
law  of  Jamaica ;  it  gives  an  indefeasible  title  in  fee  simple  to  lands  of 
which  a  person  has  had  possession  for  seven  years,  excepting  only  from 
its  operation  infants,  feme  coverts,  non  compotes  mentis,  persons  im- 
prisoned or  beyond  the  limits  of  the  United  States  and  the  territories 
tiiereof,  and  the  heirs  of  the  excepted,  provided  they  bring  actions 
within  three  years  after  they  have  a  right  to  sue.    Act  of  November  16, 
1817,  ch.  28,  §§  1,  2.     So  in  North  Carolina  there  is  a  provision  in 
the  act  of  1715,  ch.  17,  §  2,  with  the  same  exceptions  as  in  the  act  of 
Tennessee,   the  latter  being  probably  copied  substantially  from   the 
former.     Thirty  years'  possession  in  Louisiana  prescribes  land,  though 
possessed  without  title  and  vudd  fide. 

We  have  mentioned  those  acts  in  our  own  States  only  for  the  pur- 
pose of  showing  the  difference  between  statutes  giving  title  from  posses- 
sion, and  such  as  only  limit  the  bringing  of  suits.  It  not  unfrequently 
hap[)ens  in  legislation  tiiat  such  sections  are  found  in  statutes  for  the 


540  THE    HAERISBURG.  [CHAP.   V. 

limitation  of  actions.  It  is,  in  fact,  because  they  have  been  overlooked 
that  the  distinction  between  them  has  not  been  recognized  as  much  as 
it  ought  to  have  been,  in  the  discussion  of  the  point  whether  a  certain 
time  assigned  b}'  a  statute,  within  which  an  action  must  be  brought,  is 
a  part  of  the  contract,  or  solely  the  remedy.  The  rule  in  such  a  case 
is,  that  the  obligations  of  the  contract  upon  the  parties  to  it,  except  in 
well-known  cases,  are  to  be  expounded  by  the  lex  loci  contractus. 
Suits  brought  to  enforce  contracts,  either  in  the  State  where  the}'  were 
made  or  in  the  courts  of  other  States,  are  subject  to  the  remedies  of  the 
forum  in  which  the  suit  is,  including  that  of  statutes  of  limitation. 

Judgment  affirmed.'^ 


THE   HARRIS  BURG. 

Supreme  Court  of  the  United  States.     1886. 
[Reported  119  United  States,  199.] 

This  is  a  suit  in  rem.  begun  in  the  District  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania,  on  the  25th  of  February, 
1882,  against  the  steamer  "  Harrisburg,"  b}'  the  widow  and  child  of 
Silas  E.  Rickards,  deceased,  to  recover  damages  for  his  death  caused 
by  the  negligence  of  the  steamer  in  a  collision  with  the  schooner 
"  Marietta  Tilton,"  on  the  16th  of  May,  1877,  about  one  hundred  yards 
from  the  Cross  Rip  Light  Ship,  in  a  sound  of  the  sea  embraced  between 
the  coast  of  Massachusetts  and  the  Islands  of  Martha's  Vineyard  and 
Nantucket,  parts  of  the  State  of  Massachusetts.  The  steamer  was  en- 
gaged at  the  time  of  the  collision  in  the  coasting  trade,  and  belonged 
to  the  port  of  Philadelphia,  where  she  was  duly  enrolled  according  to 
the  laws  of  the  United  States.  The  deceased  was  first  officer  of  the 
schooner,  and  a  resident  of  Delaware,  where  his  widow  and  child  also 
resided  when  the  suit  was  begun. 

The  statutes  of  Pennsylvania  in  force  at  the  time  of  the  collision 
provided  that,  "  whenever  death  shall  be  occasioned  by  unlawful  vio- 
lence or  negligence,  and  no  suit  for  damages  be  brought  by  the  part}' 
injured,  during  his  or  her  life,"  "the  husband,  widow,  children,  or 
parents  of  the  deceased,  and  no  other  relative,"  '•'may  maintain  an 
action  for  and  recover  damages  for  tlie  death  thus  occasioned."  "  The 
action  shall  be  bi-ought  within  one  year  after  the  death,  and  not  there- 
after." Brightly's  Purdou's  Dig.  llth  ed.,  1267,  §§3,  4,  5;  Act  of 
April  15,  1851,  §  18  ;  Act  of  April  6,  1855,  §§  1,  2. 

1  Arc.  Don  V.  Lippman,  5  CI.  &  Fin.  1  ;  Alliance  Bank  v.  Carey,  5  C.  P.  D.  429  ; 
Bank  of  U.  S.  v.  Donnally,  8  Pet.  361  ;  Burgett  v.  Williford,  56  Ark.  187,  19  S.  W. 
750  ;  Atwater  v.  Townsend,  4  Conn.  47  ;  Collins  v.  Manville,  170  111.  614,  48  N.  E. 
914  ;  Labatt  v.  Smith,  83  Ky.  599  ;  Pearsall  v.  Dwight,  2  Mass.  84  ;  Perkins  v.  Guy, 
55  Miss.  153;  Carson  v.  Hunter,  46  Mo.  467  ;  Warren  v.  Lynch,  5  Johns.  239  ;  Watson 
V.  Brewster,  1  Barr,  381.  —  Ed. 


CHAP,    v.]  THE    HARRISBUKG.  541 

By  a  statute  of  Massachusetts  relating  to  railroad  corporations,  it 
was  provided  that  "■  if,  by  reason  of  the  negligence  or  carelessness  of  a 
corporation,  or  of  the  unfitness  or  gross  negligence  of  its  servants  or 
agents  while  engaged  in  its  business,  the  life  of  any  person,  being  in 
the  exercise  of  due  diligence,  ...  is  lost,  the  corporation  shall  be  pun- 
ished bj'  a  fine  not  exceeding  five  thousand  nor  less  than  five  hun- 
dred dollars,  to  be  recovered  b}'  indictment  and  paid  to  the  executor 
or  administrator  for  the  use  of  the  widow  and  children."  .  .  ,  "Indict- 
ments against  corporations  for  loss  of  life  shall  be  prosecuted  within 
one  year  from  the  injur}'  causing  the  death."  Mass.  Gen.  Sts.  18G0,  c. 
63,  §§  97-99  ;  Stat.  1874,  c.  372,  §  163.^ 

Waite,  C.  J.  AYe  are  entirely  satisfied  that  this  suit  was  begun  too 
late.  The  statutes  create  a  new  legal  liabilit}',  with  a  right  to  a  suit  for 
its  enforcement,  provided  the  suit  is  brought  within  twelve  months,  and 
not  otherwise.  The  time  within  which  the  suit  must  be  brought  oper- 
ates as  a  limitation  of  the  liabilit}-  itself  as  created,  and  not  of  the 
remedy  alone.  It  is  a  condition  attached  to  the  right  to  sue  at  all.  No 
one  will  pretend  that  the  suit  in  Pennsylvania,  or  the  indictment  in 
Massachusetts,  could  be  maintained  if  brought  or  found  after  the  expi- 
ration of  the  year,  and  it  would  seem  to  be  clear  that,  if  the  admiralty 
adopts  the  statute  as  a  rule  of  right  to  be  administered  within  its  own 
jurisdiction,  it  must  take  the  right  subject  to  the  limitations  which  have 
been  made  a  part  of  its  existence.  It  matters  not  that  no  rights  of 
innocent  parties  have  attached  during  the  dela}-.  Time  has  been  made 
of  the  essence  of  the  right,  and  the  right  is  lost  if  the  time  is  disre- 
garded. The  liability  and  the  remedj-  are  created  by  the  same  statutes, 
and  the  limitations  of  the  remedy  are,  therefore,  to  be  treated  as  limita- 
tions of  the  right.  No  question  arises  in  this  case  as  to  the  power  of  a 
court  of  admiralty  to  allow  an  equitable  excuse  for  delay  in  suing,  be- 
cause no  excuse  of  anj-  kind  has  been  shown.  As  to  this,  it  only  appears 
that  the  wrong  was  done  in  Ma}',  1877,  and  that  the  suit  was  not  brought 
until  P'ebruary,  1882,  while  the  law  required  it  to  be  brought  within  a 
year. 

The  decree  of  the  Circuit  Court  is  reversed^  and  the  cause  remanded, 
with  instructions  to  dismiss  the  libel.'^ 

1  Only  so  much  of  tlie  case  as  involves  the  question  of  limitation  of  time  is  given. 
Arguments  of  counsel  are  omitted.  —  En. 

^  See  Brunswick.  Terminal  Co.  v.  Bank,  99  Fed.  635.  —  Ed. 


542  SEA   GROVE   BUILDING,   ETC.,   ASSO.    V.   STOCKTON.       [CHAP.   V- 


SEA  GROVE  BUILDING  AND  LOAN   ASSOCIATION  v. 
STOCKTON. 

Supreme  Coukt  of  Pennsylvania.     1892. 

[Reported  148  Pennsylvania,  146.] 

Proceeding  upon  a  bond  secured  b}'  a  mortgage  of  real  estate  in 
New  Jersey. 

Judgment  having  been  entered  upon  the  bond,  was  opened  by  the 
court,  and  by  agreement  of  counsel  the  case  was  considered  as  though 
a  set.  fa.  had  been  issued  and  proper  pleas  pleaded  by  defendant. 
Defendant's  points  were  as  follows  :  — 

"(1)  The  act  of  assembly  of  the  State  of  New  Jersey  approved 
March  23,  1881,  amendatory  of  the  act  of  March  12,  1880,  is  a  bar  to 
any  recovery  by  the  plaintiff  in  this  action,  and  the  verdict  must  be  for 
the  defendant. 

"  (2)  Under  all  the  evidence  in  the  cause,  the  verdict  must  be  for  the 
defendant." 

The  court  directed  a  verdict  for  the  plaintiff,  reserving  the  above 
points.  Subsequently  Hemphill,  J.,  entered  judgment  for  defendant, 
delivering  the  following  opinion  :  — 

The  plaintiff's  claim  in  this  case  is  upon  a  judgment  entered  in  this 
court  for  a  balance  alleged  to  be  due  upon  a  bond  that  accompanied  a 
mortgage,  both  of  which  were  executed  in  the  State  of  New  Jersey, 
and  given  for  the  same  debt ;  and  the  question  for  our  determination  is 
raised  by  the  following  point,  presented  by  the  defendant  on  the  trial 
of  the  cause,  and  reserved  by  the  court,  viz.  :  that  "  The  act  of  assem- 
bly of  the  State  of  New  Jersey  approved  March  23,  1881,  amendatory 
of  the  act  of  March  12,  1880,  is  a  bar  to  any  recovery  by  the  plaintiff 
in  the  action,  and  the  verdict  must  be  for  the  defendant." 

The  first  section  of  said  act  of  March  23,  1881,  is  as  follows  :  "  That 
in  all  cases  where  a  bond  and  mortgage  has  or  maj  hereafter  be  given 
for  the  same  debt,  all  proceedings  to  collect  said  debt  shall  be,  first,  to 
foreclose  the  mortgage,  and  if,  at  the  sale  of  the  mortgaged  premises, 
under  said  foreclosure  proceedings,  the  said  premises  should  not  sell 
for  a  sum  sufficient  to  satisfy  said  debt,  interest,  and  costs,  then  and  in 
such  case  it  shall  be  lawful  to  proceed  on  the  bond  for  the  deficiency, 
and  that  all  suits  on  said  bond  shall  be  commenced  within  six  months 
from  the  date  of  the  sale  of  said  mortgaged  premises,  and  judgment 
shall  be  rendered  and  execution  issue  only  for  the  balance  of  the  debt 
and  costs  of  suit." 

The  foregoing  section  amended  sect.  2  of  the  act  of  1880  in  manner 
following :  The  words,  "  it  shall  be  lawful  to  proceed,"  used  in  the  act 
of  1880.  are  stricken  out,  and  in  their  place  are  inserted  the  words,  "all 
proceedings  to  collect  said  debt  shall  be,  first,  to  foreclose,"  etc. 


CHAP,   v.]       SEA   GROVE   BUILDING,   ETC.    ASSO.    V.    STOCKTON.  543 

Whether  the  language  quoted  from  the  act  of  1880  was  merely  de- 
claratory of  the  then  existing  law,  or  gave  the  creditor  an  option  that 
he  did  not  previously  have,  we  are  unable  to  say,  but  it  is  clear  that 
that  option  has  been  taken  away  by  the  act  of  1881,  for  its  language  is 
mandatory,  — '^  all   proceedings,  etc.,  shall  be,  first,  to  foreclose  the 

mortgage,"  etc. 

The  second  section  of  said  act  of  1881  reads  as  follows  :  "  That  if, 
after  the  foreclosure  and  sale  of  any  mortgaged  premises,  the  person 
who  is  entitled  to  the  debt  shall  recover  a  judgment  in  a  suit  on  said 
bond  for  any  balance  of  debt,  such  recovery  shall  open  the  foreclosure 
and  sale  of  said  premises,  and  the  person  against  whom  the  judgment 
has  been  recovered  may  redeem  tlie  property  by  paying  the  full  amount 
of  money  for  which  the  decree  was  rendered,  with  interest,  to  be  com- 
puted from  the  date  of  said  decree,  and  all  costs  of  proceedings  on  the 
bond  :  provided,  that  a  suit  for  redemption  is  brought  within  six  months 
after  the  entry  of  such  judgment  for  the  balance  of  the  debt." 

This  section  amended  the  third  section  of  the  act  of  1880  by  striking 
out  the  words,  "the  owner  of  the  property  at  the  time  of  said  fore- 
closure and  sale,"  and  inserting,  in  lieu  thereof,  "the  person  against 
whom  the  judgment  has  been  recovered,"  thus  securing  to  the  judgment 
debtor,  and  depriving  the  owner  of  the  premises,  unless  he  be  also  the 
judgment  debtor,  the  right  of  redemption. 

From  the  foregoing  it  will  be  seen  that,  under  the  law  of  New  Jersej', 
to  collect  a  debt  secured  by  bond  and  mortgage,  a  creditor  is  compelled, 
first,  to  foreclose  the  mortgage  and  sell  the  mortgaged  premises,  and, 
then,  if  there  be  any  deficiency,  he  may  sue  upon  the  bond,  provided 
his  suit  be  commenced  within  six  montlis  from  date  of  sale  of  the  mort- 
gaged premises,  and  if  he  recover  judgment  in  such  suit  for  the  balance 
of  the  debt,  the  judgment  creditor  may  redeem  the  property,  provided 
his  suit  for  redemption  is  brought  within  six  months  after  the  entry  of 
the  judgment  for  the  balance  of  the  debt. 

The  facts  of  the  case  under  consideration  are,  briefly,  as  follows  : 
The  defendant,  on  Feb.  19,  1883,  gave  to  the  plaintiff  a  bond  and 
mortgage  for  $600,  secured  by  lien  upon  certain  real  estate  owned  by 
him  in  the  State  of  New  Jersey,  and  at  the  same  time,  as  collateral 
security,  transferred  to  the  plaintiff  his  stock  in  the  plaintiff  association. 
On  Feb.  9,  1884,  the  defendant  conveyed  the  mortgaged  premises,  sub- 
ject to  the  mortgage,  to  Ellwood  Parsons,  to  whom  he  also,  at  the  same 
time,  transferred,  on  the  books  of  the  plaintiff  association,  his  stock  in 
said  association.  On  Oct.  6,  1885,  Ellwood  Parsons  and  wife  conveyed 
the  same  premises,  subject  to  said  mortgage,  to  Martha  Mcllvaine,  and 
she,  on  April  23,  1886,  conv-yed  it  to  Levi  Haas.  A  bill  to  foreclose 
said  mortgage  was  filed  Aug.  26,  1887,  and  final  decree  made  July  22, 
1889.  On  Sept.  14,  1889,  the  sherilf  sold  the  mortgaged  premises 
under  the  foreclosure  proceedings,  and  sold  at  the  same  time  the  stock 
in  the  plaintiff  association,  pledged  by  defendant  as  collateral  security, 
and  the  phiiiitilf  i)urchased  both  premises  and  stock.     This  sale  was 


544  SEA   GROVE   BUILDING,   ETC.    ASSO.    V.    STOCKTON.       [CHAP.    V. 

confirmed  on  Sept.  25,  1889,  and  on  Jan.  1,  1890,  plaintiff  sold  said 
premises.  On  April  14,  1890,  tlie  plaintiff  entered  judgment  upon  the 
bond  accompanying  said  mortgage,  in  the  Court  of  Common  Pleas  of 
Chester  County,  Pennsylvania,  and  on  the  same  da}-  issued  a  writ  of 
fieri  facias  upon  the  same.  On  April  21,  1890,  on  motion  of  defend- 
ant, a  rule  was  granted  upon  the  plaintiff  to  show  cause  why  the  judg- 
ment should  not  be  opened,  and  he  let  into  a  defence,  which  rule  was, 
on  July  14,  1890,  made  absolute.  On  Aug.  18,  1890,  by  agreement 
of  counsel,  the  case  was  considered  at  issue  with  the  same  effect  as 
though  a  writ  of  scire  facias  had  issued,  and  the  proper  pleas  been 
pleaded.  No  proceedings  were  ever  had  on  the  bond  in  the  State  of 
New  Jersey. 

These  facts  raise  the  question  whether,  under  the  above  cited  acts 
of  assembh'  of  New  Jersey,  the  plaintiff  can  recover  in  the  suit  brought 
upon  said  bond  in  this  county ;  and  the  answer  to  this  question  must 
depend  upon  whether  the  acts  referred  to  are  acts  of  limitation,  or  are 
incidents  of  the  contract  and  affect  the  rights  of  the  parties.  If  the 
former,  the  lex  fori  must  govern  ;  if  the  latter,  the  lex  loci  contractus. 

Statutes  of  limitation,  it  is  well  settled,  form  no  part  of  the  contract 
itself;  they  affect  only  the  remed}-  in  case  of  suit.  A  statute  of  limi- 
tation has  been  defined  to  be  "a  statute  assigning  a  certain  time,  after 
which  rights  cannot  be  enforced  b}*  action,"  and  Green,  J.,  in  Tenant 
V.  Tenant,  110  Pa.  485,  has  thus  described  its  effect  or  operation  :  "  The 
State  simpl}'  declares  that,  if  her  process  is  used,  it  must  be  done  within 
certain  fixed  periods  of  time,  and  if  not  so  used,  the  defendant  ma}-,  at 
his  option,  plead  the  laches  of  the  plaintiff,  and  receive  the  benefit  of 
the  prohibition.  It  is,  in  substance,  a  prohibition  on  the  use  of  pro- 
cess, after  a  definite  period,  and  this,  of  course,  makes  it  a  matter  of 
remed}'  only,"  for  "  the  obligation  of  the  contract  is  not  terminated  or 
defeated." 

Now,  the  act  of  1881  does  limit  the  mortgagee's  right  of  action  upon 
his  bond  to  "six  months  from  the  date  of  the  sale  of  said  mortgaged 
premises  ; "  it  also  limits  the  judgment  debtor's  right  to  sue  for  re- 
demption to  "  six  months  after  the  entry  of  such  judgment  for  the 
balance  of  the  debt." 

Both  of  these  provisions  have  all  the  essentials  of  a  statute  of  limi- 
tation, and  if  the  act  contained  either  or  both,  and  nothing  more,  we 
could  have  no  hesitation  in  pronouncing  it  a  statute  of  limitations,  and 
affecting,  consequently,  the  remedy  only. 

We  must,  however,  consider  and  interpret  the  act  as  a  whole,  and 
endeavor  to  ascertain  its  intent  or  object,  and,  in  this  enlarged  view, 
it  is  apparent  that  its  object  is  not  merely  to  limit  the  time  within  which 
either  suit  upon  the  bond  or  for  redemption  maj-  be  brought  (the}-  are 
but  incidents),  but  to  prescribe,  and  in  a  mandatory  manner,  how  debts 
secured  by  bond  and  mortgage  shall  be  collected  ;  and  it  is  well  settled 
that,  when  a  particular  mo<le  of  procedure  is  prescribed,  all  others  are 
denied  or  excluded.     It  is  equally  well  settled,  that  all  contracts  are 


CHAP,  v.]       SEA   GROVE   BUILDING,    ETC.,    ASSO.    V.    STOCKTON.  545 

presumed  to  have  been  made  with  reference  to  existing  laws,  which, 
where  applicable,  form  a  part  of  the  contract  itself. 

This  mortgage  contract  was,  therefore,  made  under  and  with  refer- 
ence to  the  existing  laws  of  New  Jersey,  which  were  an  incident  of  the 
contract  and  an  implied  part  of  the  agreement  of  the  parties,  and,  in 
compliance  with  the  requirements  of  these  laws,  the  mortgagee,  in  case 
of  default,  was  bound  to  proceed,  first,  to  foreclose  the  mortgage,  and 
had  he,  in  violation  of  his  implied  agreement,  sued  first  upon  his  bond, 
either  in  New  Jersey  or  Pennsylvania,  the  statute  of  1881  would  have 
been  a  full  and  complete  defence,  and  prevented  recovery,  not  because 
it  contained  limitations  of  certain  actions,  but  because  it  was  in  viola- 
tion of  the  contract,  viz.  :  that  the  mortgagee  should  proceed,  first,  to 
foreclose  the  mortgage,  and  if  he  subsequently  proceeded  on  the  bond, 
to  collect  anj-  deficiency,  that  the  judgment  debtor  should  have  six 
months,  from  entry  of  judgment  for  such  deficiency,  within  which  to 
bring  his  suit  for  redemption,  of  which  he  would  otherwise  be  deprived, 
thus  affecting  not  merely  the  remed\-,  but  the  rights  of  the  parties.  The 
act  of  1881  is  not  an  act  of  limitation,  but  an  act  prescribing  and  regu- 
lating the  mode  of  procedure  on  all  mortgage  contracts  entered  in  the 
State  of  New  Jersey.  It  not  only  compels  the  mortgagee  to  first  fore- 
close the  mortgage,  and,  if  he  desires  to  proceed  on  the  bond  for  an}- 
deficienc}',  to  commence  his  suit  within  six  months  from  the  date  of  the 
sale  of  the  mortgaged  premises,  but  it  also,  in  case  judgment  be  recov- 
ered on  the  bond,  opens  the  foreclosure  and  sale  of  the  premises,  and 
allows  the  judgment  creditor  six  months,  from  the  entry  of  such  judg- 
ment, within  which  to  bring  his  suit  for  redemption. 

While  the  act  does  not  say  the  debt  is  extinguished,  unless  the  mort- 
gagee bring  the  suit  on  the  bond  within  the  time  specified,  yet  such  is 
clearly  the  implied  and  logical  conclusion  ;  for,  if  not  extinguished,  and 
suit  could  be  afterwards  brought,  the  foreclosure  and  sale  would  not  be 
opened  ;  the  judgment  creditor  would  be  deprived  of  his  right  of  re- 
demption, and  the  six  months'  limitation  would  be  without  meaning 
and  useless. 

It  is  furthermore  apparent,  from  the  title  of  the  act  itself,  that  it  is 
not  one  of  limitations,  for  it  declares  it  to  be  "An  act  concerning  pro- 
ceedings on  bonds  and  mortgages  given  for  the  same  indebtedness,  and 
the  foreclosure  of  the  mortgaged  premises  thereunder." 

We  are,  therefore,  of  the  opinion  that  the  act  of  assembly  of  New 
Jersey,  of  March  28,  1881,  was  an  incident  of  the  contract,  affecting 
not  merely  the  remedy  under,  but  the  rights  of  the  parties  to,  the  con- 
tract, and  that,  by  the  failure  of  the  plaintiff  to  proceed  on  his  bond 
wibhin  six  months  from  the  date  of  the  sale  of  the  mortgaged  premises, 
the  debt  is  extinguished,  and  he  cannot  recover  in  this  action.  The 
defendant's  points  are  affirmed,  and  judgment  must  be  entered  for  the 
defendant  non  obstante  veredicto,  upon  payment  of  the  verdict  fee. 

Judgment  for  defendant,  non  obstante  veredicto.     Plaintiff  ap' 
pealed. 

35 


546  HAMIDA   V.   BENAIAD.  [CHAP.    V. 

Per  Curiam.  This  case  has  been  so  well  discussed  by  the  learned 
judge  of  the  court  below,  that  we  affirm  the  judgment,  for  the  reasons 
given  by  him. 


HAMIDA   V.   BENAIAD. 

Civil  Tribunal  of  the  Seine.     1885. 

[Reported  13  Clunet,  203.] 

The  Tribunal.  This  action  having  for  its  object  the  dissolution 
of  a  partnership  and  the  distribution  of  the  assets,  the  prescription 
which  applies  is  the  2J'>'6scription  Uberatoire,  which  according  to  the  law 
of  France  runs  only  in  thirty  years  (by  the  terms  of  Art.  2262  of  the 
Civil  Code)  when  it  is  invoked  in  a  mixed  action  like  this.  Admit- 
ting that  the  prescription  Uberatoire  is  governed  by  the  law  of  the 
debtor's  domicile,  at  the  time  of  bringing  the  action,  in  this  case  the 
prescription  of  Art.  2262  began  to  run  for  the  benefit  of  Mahmoud 
Benaiad  onl}'  from  the  time  when  he  became  French  by  naturalization, 
Sept.  13,  1852 ;  the  prescription  was  interrupted  by  this  action, 
brought  Oct.  21,  1880.  In  the  interval  less  than  thirty  years  elapsed, 
and  the  time  required  by  the  French  law  has  not  run. 

The  defendants,  to  succeed  in  their  plea,  must  prove  that  before 
Mahmoud's  naturalization,  the  prescription  had  already  begun  to  run 
for  his  benefit  by  virtue  of  the  law  of  his  country.  It  is  for  him 
that  alleges  this  to  prove  it,  questions  of  foreign  law  being,  for  French 
courts,  questions  of  fact ;  and  in  this  respect  they  do  not  prove  their 
plea. 

The  starting  of  the  prescription  at  a  date  prior  to  Sept.  13,  1852, 
not  being  proved,  prescription  cannot  be  allowed.^ 

1  Five  rules  have  been  suggested  by  foreign  jurists  as  governing  the  application  of  the 
laws  of  prescription.  1.  That  prescription  is  governed  by  the  law  of  the  place  where 
the  obligation  came  into  existence.  Cauhaperou  v.  Compagnies  des  Chemins  de  far 
(Bordeaux,  27  Apr.  1891),  19  Clunet,  1004;  Harvey  v.  Engelbert  (Bremen,  5  Mar. 
1877),  5  Clunet,  627;  Blankezteju  v.  Prokuratorza  (Senate  of  Warsaw,  6  Dec.  1873), 
1  Clunet,  333.  2.  That  it  is  governed  by  the  law  of  the  debtor's  domicile,  Merlin  Rep. 
Prescr.  Sec.  1,  §  3,  VII  ;  Xoto  v.  Pacini  (Seine,  11  Dec.  1893),  21  Clunet,  145  ;  Anon. 
(Holland,  1874),  1  Clunet,  141.  3.  That  it  is  governed  by  the  law  of  the  creditor's 
domicile.  4.  That  it  is  governed  by  the  law  of  the  place  of  performance  of  the  obliga- 
tion. These  rules  do  not  seem  to  be  generally  held  by  any  court.  5.  That  it  is 
governed  by  the  law  of  the  forum.  Wehrle  v.  Letwinoff  (Seine,  28  Nov.  1891),  19 
Clunet,  712 ;  X.  v.  de  Jellinck  (Brussels,  4  Feb.  1893),  20  Clunet,  942.  —  Ed. 


CHAP,  v.]   HOADLEY  V.   NORTHERN  TRANSPORTATION  CO.        547 

HOADLEY    V.   NORTHERN   TRANSPORTATION   CO. 

Supreme  Judicial  Colkt  of  Massachusetts.     1874. 

[Reported  115  Massachusetts,  304.] 

Colt,  J.^  The  plaintiff  seeks  to  recover  in  tort  against  the  defendant 
as  a  comnaon  carrier  for  the  loss  of  a  steam-engine  which  it  had  under- 
taken to  transport  from  Chicago,  Illinois,  and  deliver  to  him  at  Law- 
rence in  this  State.  The  engine  was  destroyed  at  Chicago  in  the  great 
tire  of  1871,  and  one  question  at  the  trial  was,  whether  by  the  terms  of 
the  contract  of  transportation  the  defendant  was  liable  for  this  loss. 

The  plaintiff  put  in  the  bill  of  lading  received  by  his  agent  at  Chicago 
of  the  defendant  at  the  time  the  property  was  delivered  for  transporta- 
tion. It  is  in  the  usual  form,  and  the  terms  and  conditions  are  ex- 
))ressed  in  the  body  of  the  paper  in  a  way  not  calculated  to  escape 
attention.  In  one  clause  it  exempts  the  defendant  from  all  liability 
for  loss  or  damage  b}'  fire  ;  in  another  from  all  liability  "  for  loss  or 
damage  on  any  article  or  property  whatever  by  fire  while  in  transit  or 
while  in  depots  or  warehouses  or  places  of  transshipment,"  and  further 
provides  that  the  delivery  of  the  bill  of  lading  shall  be  conclusive  evi- 
dence of  assent  to  its  terms. 

It  was  assumed  by  both  parties  as  now  settled  that  a  common  car- 
rier may  by  special  contract  avoid  or  limit  his  liability  at  common  law 
as  an  insurer  of  property  intrusted  to  him  against  loss  or  damage  by 
fire  occurring  without  his  own  fault.  Such  is  the  declared  law  of  this 
Commonwealth,  and  the  Illinois  cases  produced  at  the  trial  assume  that 
the  same  rule  prevails  there.  An  express  contract,  once  established, 
is  in  both  States  effectual  to  limit  the  carrier's  liability.  But  the  plain- 
tiff contended  that  by  the  law  of  Illinois,  as  declared  in  the  courts  of 
that  State,  the  mere  receipt,  without  objection,  of  a  bill  of  lading  which 
limits  the  carrier's  common  law  liability  for  loss  by  fire,  would  not 
raise  a  presumption  that  its  terms  were  assented  to,  but  such  assent, 
if  relied  on,  must  be  shown  by  other  and  additional  evidence.  The 
jury  have  found  this  to  be  the  law  of  that  State,  under  instructions  not 
objected  to,  and  we  are  not  required  to  say  whether  there  was  sufficient 
evidence  to  warrant  the  finding.  Adams  Express  Compan}'  v.  Ilaynes, 
42  111,  89;  American  P^xpress  Company  r.  Schier,  55  111.  140,  150; 
Illinois  Central  Railnxul  r.  Frankeuberg,  54  111.  88,  98.  The  court 
ruled  that  this  law  of  Illinois  must  govern  the  case,  and  that  under  it 
the  juiy  could  not  find  that  the  mere  receipt  of  the  bill  of  lading  would 
be  evidence  of  assent  to  its  terms. 

The  law  of  this  Commonwealth  differs  from  the  law  of  Illinois  as  thus 
found.  In  Grace  v.  Adams,  100  Mass.  505,  decided  by  this  court  on 
:ui  agreed  statement  of  facts,  it  was  held  that  a  bill  of  ladiug  or  ship- 
[(ing  receipt,  taken  by  a  consignor  without  dissent  at  the  time  of  the 
delivery  of  the  property  for  transportation,  by  the  terms  of  which  the 
carrier  stipulates  against  such  liability,  would  exempt  the  carrier  when 
1   I'ait  of  tlie  oiiiiiiuii  only  is  given. —  Eu. 


•548  HOADLEY   V.   NORTHERN    TRANSPORTATION    CO.       [CHAP.    V. 

the  loss  was  not  caused  by  his  own  negligence,  on  the  ground  that  such 
acceptance  would  authorize  him  to  infer  assent,  and  amount  to  evidence 
of  the  contract  between  the  parties.  The  defendant  contends  that 
the  case  is  to  be  tried  by  tlie  law  of  this  Commonwealth. 

It  is  a  o-eneral  rule  that  personal  contracts  must  have  the  same  inter- 
pretation and  binding  force  in  all  countries  which  they  have  in  the 
place  where  made.  The  contract  is  presumed  to  have  been  entered 
into  with  reference  to  the  law  of  that  place.  If  formalities  and  solemni- 
ties are  there  required  to  give  validity  to  it,  the  requirement  must  be 
shown  to  have  been  observed.  But  tlie  law  of  the  place  where  the 
action  is  brought,  by  the  same  general  rule,  regulates  the  remedy  and 
all  the  incidents  of  the  remedy  upon  it.  The  law  of  the  former  place 
determines  the  right ;  the  law  of  the  latter  controls  the  admission  of 
evidence  and  prescribes  the  modes  of  proof  by  which  the  terms  of  the 
contract  are  made  known  to  the  court,  as  well  as  the  form  of  the  action 
by  which  it  is  enforced.  Thus  in  a  suit  in  Connecticut  against  the  in- 
dorser  on  a  note  made  and  indorsed  in  New  York,  it  was  held  that 
parol  evidence  of  a  special  agreement  different  from  that  implied  by 
law  would  be  received  in  defence,  although  by  the  law  of  the  latter 
State  no  agreement  different  from  that  which  the  law  implies  from  a 
blank  indorsement  could  be  proved  by  parol.  Downer  v.  Chesebrough, 
36  Conn.  39.  And  upon  the  same  principle  it  has  been  held  that  a 
contract  valid  by  the  laws  of  the  place  where  it  is  made,  although  not 
in  writing,  will  not  be  enforced  in  the  courts  of  a  country  where  the 
statute  of  frauds  prevails  unless  it  is  put  in  writing  as  required.  Leroux 
V.  Brown,  12  C.  B.  801.  So  assumpsit  was  held  to  lie  in  New  York 
on  an  undertaking  in  Wisconsin  contained  in  a  writing  having  a  scrawl 
and  no  seal  affixed  to  the  defendant's  name,  although  in  the  latter 
State  it  had  in  pleadings  and  in  evidence  the  effect  of  a  seal.  Le  Roy 
V.  Beard,  8  How.  451.  The  statute  of  limitations  for  the  same  reasons 
affects  only  the  remedy,  and  has  no  extra-territorial  force. 

It  is  not  always  indeed  easy  to  determine  whether  the  rule  of  law 
sought  to  be  applied  touches  the  validity  of  the  contract  or  only  the 
remedy  upon  it.  In  the  opinion  of  the  court,  the  rule  of  law  laid  down 
in  Illinois  and  here  relied  on  by  the  plaintiff  aflects  the  remedy  only, 
and  ought  not  to  control  the  courts  of  this  Commonwealth.  The  nature 
and  validity  of  the  special  contract  set  up  is  the  same  in  both  States. 
It  is  only  a  difference  in  the  mode  of  proof.  A  presumption  of  fact  in 
one  State  is  held  legally  sufficient  to  prove  assent  to  the  special  con- 
tract relied  on  to  support  the  defence.  In  the  other  State  it  is  held  not 
to  be  sufficient.  It  is  as  if  proof  of  the  contract  depended  upon  the 
testimony  of  a  witness  competent  in  one  place  and  incompetent  in  the 
other.  The  instructions  given  at  the  trial  upon  this  point  did  not 
conform  to  the  view  of  the  law  above  stated,  in  which,  upon  more  full 
consideration,  we  all  concur.  Exceptions  sustained.^ 

1  Ace.  Johnson  v.  C.  &  N.  W.  Ry.,  91   la.  248,  59  N.  W.  66.     Contra,  Teuconi  v. 
Terzaghi  (Turin  Cass.  7  July,  1887),  15  Clunet,  426.     Lord  Brougham  in  Bain  ». 


CHAP,    v.]  PECK    V.   MAYO.  ^'^^ 

PECK   V.  MAYO. 

Supreme   Court,    Vermont.     1842. 
[Reported  H  Vermont,  33] 

Redfield.  J.^  This  action  is  upon  a  promissory  note,  made  in  Mon- 
treal, where  the  legal  rate  of  interest  is  six  per  cent,  payable  at  the  M.  & 
F.'s  bank,  in  the  city  of  Albany,  where  the  legal  rate  of  interest  is 
seven  per  cent,  and  indorsed  bv  the  defendants  in  this  State,  where 
the  legal  rate  of  interest  is  six  per  cent.  This  action  being  against  the 
defendants,  as  indorsers,  the  only  question  is,  what  rate  of  interest  are 
they  liable  for?  The  note  was  payable  at  a  day  certain,  but  no  interest 
stipulated  in  the  contract.  The  interest  claimed  is  for  damages  in 
not  paving  the  money  when  due. 

The'first  question  naturally  arising  in  this  case  is,  what  rate  of  inter- 
est, bv  wav  of  damages,  are  the  signers  liable  for?  There  are  fewer 
decisions  to  be  found  in  the  books,  bearing  directly  upon  this  subject, 
than  one  would  naturally  have  expected.  It  is  an  elementary  principle, 
upon  this  subject,  that  all  the  incidents  pertaining  to  the  validity  and 
construction,  and  especially  to  the  discharge,  performance,  or  satisfaction 
of  contracts,  and  the  rule  of  damages  for  a  failure  to  perform  such  con- 
tract, will  be  governed  by  the  lex  loci  contractus.  This  terra,  as  is 
well  remarked  by  Mr.  Justice  Story,  in  his  Conflict  of  Laws,  248,  may 
have  a  double  meaning  or  aspect ;  and  that  it  may  indifferently  indicate 
the  place  where  the  contract  is  actually  made,  or  that  where  it  is  vir- 
tually made,  according  to  the  intent  of  the  parties,  that  is,  the  place 
of  performance.  The  general  rule  now  is,  I  apprehend,  that  the  latter 
is  the  governing  law  of  the  contract.  Hence  the  elementary  principle 
undoubtedly  is  that  the  rate  of  interest,  whether  stipulated  in  the  con- 
tract or  given  by  way  of  damages  for  the  non-performance,  is  the  in- 
terest of  the  place  of  payment. 

We  will  next  examine  whether  any  positive  rule  of  law  has  been 
established  contravening  this  principle.  2  Kent  Com.  460,  461.  Chan- 
cellor Kent  expressly  declares  that  this  elementary  principle  is  now  the 
"received   doctrine  at  Westminster  Hall,"    and   cites   Thompson  v. 

Whitehaven,  &c.  Ry.,  3  H.  L.  C.  1,  19,  said  :  "The  law  of  evidence  is  the  lex  fori 
which  governs  the  courts.  Whether  a  witness  is  competent  or  not  ;  whether  a  certain 
matter  requires  to  he  proved  by  writing  or  not ;  whether  certain  evidence  proves  a  cer- 
tain fact  or  not  :  This  is  to  be  determined  by  the  law  of  the  country  where  the  question 
arises,  where  the  remedy  is  sought  to  be  enforced,  and  where  the  court  sits  to  enforce 

it."  .      . 

So  if  a  stamp  is  required  for  admitting  any  document  in  evidence,  even  a  foreign 
document  must  be  stamped  before  it  will  be  admitted  ;  whiU'  a  document  valid  but  in- 
adniissible,  under  this  rule,  where  made,  may  be  admitted  in  another  State  not  requir- 
ing a  stamp.  Bristow  v.  Sequeville,  5  Ex.  275  ;  Fant  v.  Miller,  17  Grat.  47  ;  Murdock 
r.  Roebuck,  1  Juta  (Cape  Colony),  1  ;  Dearsley  v.  Bennels  (Ghent,  7  Dec.  1876), 
5  Clunet,  509.  —  En. 
1  Part  of  the  opinion  only  is  given.— Ed. 


550  PECK    V.   MAYO.  [chap.    V. 

Powles,  2  Simons'  R.  194  (2  Cond.  Ch.  R.  378).  This  case  does 
not  necessarily  decide  this  point,  but  the  opinion  of  the  Vice  Chancellor 
expressly  recognizes  the  rule,  that,  although  the  rate  of  interest  stipu- 
lated is  above  the  English  interest,  still  the  contract  will  not  be 
usurious,  unless  it  appear  to  be  a  contract  made  in  England  and  there 
to  be  performed.  The  case  of  Harvey  v.  Archbold,  1  Ryan  &  Moody, 
184  (21  Eng.  C.  L.  729),  recognizes  more  expressly  the  same  doctrine. 
The  case  of  Depau  v.  Humphreys,  8  Martin,  1,  expressly  decides,  that 
a  contract  made  in  one  country,  to  be  performed  in  another,  where  the 
rate  of  interest  is  higher  than  at  the  place  of  entering  into  the  contract, 
it  may  stipulate  the  higher  rate  of  interest.  Mr.  Justice  Story  recog- 
nizes the  elementary  rule,  above  alluded  to,  as  the  settled  law.  Con- 
flict of  Laws,  243,  246.  Similar  language  is  adopted  by  Mr.  Justice 
Thompson,  Boyce  v.  Edwards,  4  Peters'  R.  Ill,  and  by  Mr.  Chief 
Justice  Taney,  in  Andrews  v.  Pond,  13  Peters,  65,  and  by  Chancellor 
Walworth,  in  Hosford  v.  Nichols,  1  Paige,  220.  Much  the  same  is 
said  by  the  court  in  the  case  of  the  Bank  of  the  U.  S.  v.  Daniel,  12 
Peters,  32.  In  many  of  these  cases  the  question  alluded  to  was  not 
directly  before  the  court,  but,  b}'  all  these  eminent  jurists,  it  seems  to 
have  been  considered  as  one  of  the  long  settled  principles  of  the  law  of 
contract.  The  same  rule  of  damages  was,  in  the  case  of  Ekins  v.  the 
East  India  Company,  1  P.  Wms.  395,  applied  to  the  tortious  conversion 
of  a  ship  in  Calcutta,  the  court  making  the  company  liable  for  the  value 
of  the  ship,  at  the  time  of  conversion,  and  the  India  rate  of  interest 
for  the  delay  of  the  payment  of  the  money.  In  this  case  the  interest 
allowed  was  greater  than  the  Elnglish  interest. 

When  the  contract  is  entered  into  in  one  country,  to  be  performed  in 
another,  having  established  a  lower  rate  of  interest  than  the  former, 
and  the  contract  stipulates  interest  generally-,  it  has  alwajs  been  held 
that  the  rate  of  interest  recoverable  was  that  of  the  place  of  perform- 
ance only.  It  is  expressly  so  decided  in  Robinson  v.  Bland,  2  Bur- 
row, 1077  ;  Fanning  v.  Consequa,  17  Johns.  511  ;  Schofield  v.  Day,  20 
Johns.  R.  102. 

From  all  which  I  consider  the  following  rules,  in  regard  to  interest  on 
contracts,  made  in  one  country  to  be  executed  in  another,  to  be  well 
settled  :  1.  If  a  contract  be  entered  into  in  one  place  to  be  performed 
in  another,  and  the  rate  of  interest  differ  in  the  two  countries,  the  par- 
ties may  stipulate  for  the  rate  of  interest  of  either  countr}',  and  thus  l)y 
their  own  express  contract,  determine  with  reference  to  the  law  of 
which  country  that  incident  of  the  contract  shall  be  decided.  2.  If  the 
contract,  so  entered  into,  stipulate  for  interest  generally,  it  shall  be  the 
rate  of  interest  of  the  place  of  payment,  unless  it  appear  the  par- 
ties intended  to  contract  with  reference  to  the  law  of  the  other  place. 
3.  If  the  contract  be  so  entered  into,  for  money,  payable  at  a  place  on  a 
day  certain,  and  no  interest  be  stipulated,  and  payment  be  delayed, 
interest,  by  way  of  damages,  shall  be  allowed  according  to  the  law  of 
the  place  of  payment,  where  the  money  may  I)e  supposed  to  have  been 


CHAP,    v.]  AVER   V.    TILDEN.  o51 

required  by  the  creditor  for  use,  and  where  he  might  be  supposed  to 
have  borrowed  money  to  supph'  the  deficiency  thus  occurring,  and  to 
have  paid  the  rate  of  interest  of  that  country.  This  is  expressly  recog- 
nized as  the  settled  rule  of  law,  in  regard  to  the  acceptor  of  a  bill, 
who  stands  in  the  place  of  the  maker  of  these  notes.  3  Kent's 
Com.  116.1 


AYER   V.   TILDEN. 

Supreme  Judicial  Court  of  Massachusetts.    1860. 

[Reported  15  GraTj,  178.] 

Action  of  contract  upon  this  promissory  note,  made  and  indorsed 
by  the  defendants:  "$670.81.  New  Lebanon,  20th  June,  1857.  Six 
months  after  date  we  promise  to  pay  to  the  order  of  ourselves  six 
hundred  and  seventy  dollars  and  eight3'-one  cents,  value  received,  at 
Bank  of  America,  N.  Y.     Tilden  &  Co." 

The  parties  stated  the  following  case,  upon  which  the  Superior  Court 
in  Middlesex  gave  judgment  for  the  defendants,  and  the  plaintiffs 
appealed.^ 

Hoar,  J.  The  plaintiffs  are  entitled  to  recover,  according  to  the 
agreement  of  parties,  the  principal  of  the  note,  with  interest  at  such  a 
rate  as  the  law  will  allow.  That  rate  will  be  six  per  cent  from  the 
maturity  of  the  note.  The  interest  is  not  a  sum  due  by  the  contract, 
for  by  the  contract  no  interest  was  payable,  and  is  not  therefore 
affected  by  the  law  of  the  place  of  contract.  It  is  given  as  damages 
for  the  breach  of  contract,  and  must  follow  the  rule  in  force  within  the 
jurisdiction  where  the  judgment  is  recovered.  Grimshaw  v.  Bender, 
6  Mass.  157  ;  Eaton  v.  Melius,  7  Gray,  566  ;  Barringer  v.  King,  5 
Gra}',  12.  The  contrary  rule  has  been  held  to  be  applicable  where  there 
was  an  express  or  implied  agreement  to  pay  interest.  Winthrop  v. 
Carleton,  12  Mass.  4;  Von  Ilemert  v.  Porter,  11  Met.  220;  Lanusse 
V.  Barker,  3  Wheat.  147. 

Perhaps  it  would  l)e  difficult  to  support  the  decision  in  "Winthrop  v. 
Carleton  upon  an}'  sound  principle;  because  the  court  in  tiiat  case 
held  that  interest  could  only  be  computed  from  tiio  date  of  the  writ, 
thus  clearly  showing  that  it  was  not  considered  as  due  by  the  contract, 
and  yet  adopted  the  rate  of  interest  allowed  at  the  place  of  the  contract. 
But  the  error  would  seem  to  be  in  not  treating  mono}',  paid  at  the 
implied  request  of  another,  as  entitled  to  draw  interest  from  the  time 
of  payment. 

1  Arc.  Gibbs  V.  Froniont,  9  Ex.  25;  Et.  parte  Tloidclhnck,  2  Low.  520;  Ballistcr  v. 
Hamilton,  3  La.  Ann.  401;  Fanning  «.  C()n.s(M|na,  17.Iolins.  511;  llayinond  v.  Messier 
<Fren<di  Cas.s.  9  Junp,  1880),  7  Clunot,  394.— Fi). 

*  Only  so  much  of  the  case  as  deals  with  the  rate  of  interest  is  given.  —  Ed. 


552  COMMERCIAL   NATIONAL   BANK   V.   DAVIDSON.        [CHAP.    V. 

An  objection  to  adopting  the  rule  of  the  rate  of  interest  in  the  juris- 
diction where  the  action  is  brought  as  the  measure  of  damages  may  be 
worth}'  of  notice,  that  this  rule  would  allow  the  creditor  to  wait  until 
he  could  find  his  debtor  or  his  property-  within  a  jurisdiction  where  a 
much  higher  rate  of  interest  was  allowed  than  at  the  place  of  the  con- 
tract. But  a  debtor  could  always  avoid  this  danger  by  performing  his 
contract ;  and  the  same  difficulty  exists  in  relation  to  the  actions  of 
trover  and  replevin. 

If  such  a  case  should  arise,  it  might  with  more  reason  be  argued  that 
the  damages  should  not  be  allowed  to  exceed  those  which  would  have 
been  recovered  in  the  State  where  the  contract  was  made  and  to  be 
performed.^ 


COMMERCIAL   NATIONAL  BANK  v.   DAVIDSON. 

Supreme  Court  of  Oregon.     1889. 
[Reported  18  Oregon,  57.] 

Thayer,  C.  J.^  ...  It  is  stipulated  in  the  note  to  the  effect  that  if 
it  is  not  paid  at  maturity  the  makers  will  pa}'  ten  per  cent  additional  as 
costs  of  collection.  ...  It  is  m}-  opinion  that  a  clause  in  a  promissory 
note,  in  the  form  of  the  stipulation  in  question,  is  not  valid,  and  should 
not  be  enforced.   .   .   . 

Counsel  for  the  respondent  insists  that  the  stipulation  to  pay  the 
additional  sum  contained  in  the  note  in  suit  was  valid  and  binding  in 
the  Territor}'  where  the  note  was  executed,  and  that  therefore  it  should 
be  upheld  in  this  State.  As  a  general  rule,  the  law  of  the  place  where 
contracts  merel}'  personal  are  made,  governs  as  to  their  nature,  obli- 
gation, and  construction.  But  I  do  not  think  that  rule  applies  to  an 
agreement,  the  obligation  of  which  does  not  arise  until  a  remedy  is 
sought  upon  the  contract,  to  which  it  is  onl}'  auxiliary.  In  regard  to 
such  agreements,  the  law  of  the  place  where  they  are  attempted  to  be 

1  See  Kopelke  v.  Kopelke,  112  Ind.  435. 

In  Meyer  v.  Estes,  161  Mass.  157,  465,  Fikld,  C.  J.,  said  :  "  In  determining  the 
measure  of  damages  the  first  question  is  whether  the  contract  is  to  be  governed  by  the 
law  of  Massachusetts  or  by  the  law  of  the  kingdom  of  Saxony.  "We  think  that  it  is 
to  be  governed  by  the  law  of  Massachusetts.  The  contract  was  signed  in  Massachusetts 
and  sent  to  the  plaintiff  at  Leipzig,  Saxony ;  it  did  not  become  a  contract  until  the 
plaintiff  accepted  it  and  notified  the  defendants  of  such  acceptance,  which  he  did  by 
telegram  sent  to  them  at  Boston.  Lewis  v.  Browning,  130  Mass.  173  ;  Piue  v.  Smith, 
11  Gray,  38  ;  Hill  v.  Chase,  143  Mass.  129.  The  contract  relates  to  what  is  to  be  done 
by  the  defendants  in  the  United  States  of  America  ;  the  defendants  are  described  as 
'of  Boston,  Mass.,  U.  S.  A.,'  and  the  date  of  the  contract  is  Boston.  "We  think 
that  it  must  be  regarded  as  a  contract  to  be  performed  in  Massachusetts,  and  that  the 
law  of  Massachusetts,  which  is  also  the  law  of  the  forum,  must  determine  the  damages 
to  be  recovered  in  the  action."  —  Ed. 

'  Only  so  much  of  the  opinion  as  deals  with  the  question  of  costs  is  given.  —  Ed. 


CHAP,   v.]      COMMERCIAL   NATIONAL   BANK   V.   DAVIDSON.  553 

enforced,  I  should  suppose,  would  prevail.  This  agreement  was  to  pa\' 
the  additional  percentage  as  costs  for  collection  of  the  note,  and  if  the 
courts  where  the  note  was  executed  would  have  enforced  the  agree- 
ment, it  does  not  follow  that  the  courts  of  another  jurisdiction  are 
bound  to  do  so.  The  effect  of  the  agreement  was  to  provide  for  an 
increase  of  costs,  which  are  only  incidental  to  the  judgment,  and  the 
allowance  of  which  must  necessarily  depend  upon  the  law  of  the  forum. 
A  stipulation  in  a  note  made  in  Utah  Territory,  providing  that  in  an 
action  on  the  note  the  plaintiff,  in  case  of  a  recovery,  should  be  entitled 
to  double  costs,  might  be  considered  valid  under  the  laws  of  that  Ter- 
ritory, and  enforceable  in  its  courts  ;  but  that  certainly  would  not  ren- 
der it  incumbent  upon  the  courts  of  this  State,  in  an  action  upon  such 
note,  to  award  double  costs. ^ 

1  Ace.  Security  Co.  v.  Eyer,  36  Neb.  507,  54  N.  W.  838.  —  Ed. 


SELECTION  OF  CASES 


ON 


THE  CONFLICT  OF  LAWS 


BY 

JOSEPH    HENRY    BEALE,   Jr. 

PBOFESSOR   OF    LAW    IN    UABYABD    UNIVEKSITT 


Vol.  IL 
THE   CREATION   OF   RIGHTS 


CAMBRIDGE 
HARVARD    UNIVKRSTTY    PRESS 


Copyright,  1901, 
Bt  Joseph  Henky  Beale,  Je. 


^aniijEtsttg  Press: 
John  Wilsox  and  Son,  Cambridge,  U.S.A. 


TABLE   OF   CONTENTS 


Table  of  Cases 


Page 


PART   TIL 
THE   CREATIOX   OF   RIGHTS. 


CHAPTER  VI. 
PERSONAL  RIGHTS. 

Section  I.  General  Principles 1 

Section  II.  Capacity 8 

Section  III.  Marriage 41 

Section  IY.  Legitimacy  and  Adoption 107 

CHAPTER   Vll. 

RIGHTS   OF  PROPERTY. 

Section  I.       The  Nature  of  Property 143 

Section  II.      Immovables 150 

Section  III.    Movables 154 

Section  IV.     Trusts 195 

Section  V.       Marital  Property 210 

CHAPTER   ^'III. 

INIIKKITANCE. 

Section  I.        Intestate  Succession 253 

Section  II.      Testamentary  Succession 201 

Section  III.    Execution  of  Power 297 

CHAPTER  IX. 
Obligations  ex  Delicto 308 


IV 


TABLE   OF   CONTENTS. 


CHAPTER   X. 

OBLIGATIONS  EX  CONTRACTU. 

Page 

Section  I.         Place  of  Contracting 348 

Section  II.       Formalities 363 

Section  III.      Obligation 375 

Section  IV.      Interpretation 431 

Section  V.        Effect 4^45 

Section  VI.      Assignment 462 

Section  VII.     Performance 468 

Section  VIII.  Discharge 486 

Section  IX.      Special  Forms  of  Obligation: 

(A)  Mercantile  Instruments 511 

(B)  Obligations  of  Carriers 531 

(C)  Obligations  Quasi  ex  Contractu 548 


TABLE   OF   CASES. 


[Tliis  table  contains  all  cases  in  the  text,  and  all  the  American,  British  and  Colonial  cases  cited 
by  the  editor  in  his  notes.    Cases  in  the  text  are  printed  in  small  capitals.] 


Page 
A.  V.  C.  36 
Abdt,  Lee  v.  462 
Abt  V.  Bank  531 
Acker  v.  Priest  200 
Adams  v.  Farley  286 
Adkisson,  Dayton  v.  124 
Afflick,  In  rfi  255 
Aganoor's  Trdsts,  In  re  258 
Akers  r.  Demond  416 
Alabama  G.  S.  R.  R.  v.  Carroll  328 
Alcock  i".  Smith  514 
Alexander  v.  Pennsylvania  Co.  325 
Alexandria  A.  &  F.  S.  R.  R.  v.  John- 
son 355 
Alferitz  v.  Ingalls  159 
Allshouse  V.  Ramsay  369 
Alves  r.  Hodges  364 
American  Ex.  Co.,  Brockway  v.  5-39 
American   Freehold  L.  &   M.  Co.  v. 

Jefferson  422 
American  Freehold  Mtg.  Co.  v.  Sewell  419 


American  Mtg.  Co.,  Jackson  v. 

Underwood  v. 
Ames  c.  McCamber 
Ames  Iron  Works  v.  Warren 
Anderson  v.  Wheeler 
Andrews  v.  Pond 
Andruss  v.  People's  B.  &  L.  Assoc. 
Anonymols  {1  SeufF.  Archiv,  57) 

(42  Seuff.  Archiv,  303) 

(21  Clunet,  -592) 
Anthony,  Crenshaw  v. 
Apple,  Estate  of 
Arbuckle  v.  Re.\ume 
Archer  v.  Ins.  Co. 
Arkansas  Nat.  Bank,  Masury  v. 


Armitage  r.  Spahn 

ArI'.OUARD,   SAML'KLr. 

Asheviile  &  S.  R.  R.,  Bridger  v. 

Ashland  Bank,  Junction  R.  R.  v. 

Astor  V.  Price 

Atherton,  Roberts  v. 

Atkinson  r.  Staigg 

Atkinson,  Staiog  v. 

Atlanta  N.  B.  &  L.  Assoc,  Meroney  v.  414 

Atlantic  Phosphate  Co.  v.  Ely  356 


414 
414 

158 
166 
493 
409 
414 
250 
103 
141 
159 
255 
404 
401 
181, 
407 
159 
251 
332 
414 
419 
493 
286 
283 


Page 

Attorney  General,  Brinkley  v.  48 

Scott  V.  93 

Atwater  v.  Walker  419 

Bartsch  v.  477 

August,  The  539 

Augusta,  The  341 

Aultman  v.  Holder  350 

Aymar  c.  Sheldon  518 

Ayme,  Badin  v.  189 

Ayres,  Blythe  v.  132 


B. 


Babcock,  N.  p.  R.  R.  v.  335 
Badin  v.  Heirs  of  Atmb  189 
Baldwin  v.  Gray  447 
Baldwin  v.  Hale  493 
Ballard  r.  Winter  169 
Bank  v.  Hemingray  612 
Abt  (•.  531 
Benton  v.  512 
Hyatt  V.  612 
Loftus  V.  231 
Savings  Bank  v.  512 
Sturdivant  v.  419 
Bank  of  Commerce,  Douglas  v.  522 
Bank  of"  Orange  i".  Colby  528 
Barber,  Powcatuck  Nat.  Bank  v.  528 
Baking  v.  Inland  Revenue  Commis- 
sioners 348 
Barker  r.  Stacy  159 
Crandell  v.  28() 
Barksdale,  Kentucky  Com.  Bank  u.     522 

527 

Barnes,  Howenstein  v.  612 

Barnum  v.  Baunum  127 

Barret  v.  Dodge  365 

Barrett  v.  Kelley  170 

Barrows  v.  Downs  462 

Barter  v.  Wheeler  647 

Bautlett,  Fear  v.  507 

Barton,  Waters  v.  158 

Bartsch  v.  Atwater  477 

Bascom  i\  Zediker  355 

Bassford,  Kentuciky  v.  401 
Batchki.lkk,  PiKENix  Nat.  Bank  v.  49:; 

Bates,  Shattuck  v.  l.jl 


VI 


TABLE    OF   CASES. 


Baum  V.  Birchall 

Baxter  Nat.  Bank  v.  Talbot 

Beall  V.  Williamson 
Beebe,  111.  Cent.  R.  R.  v. 
Beecham  v.  Portsmouth  Bridge 
Beers,  Cooper  r. 
Belgenland,  The 
Bell  V.  James 

i\  Packard 
Bell,  Carpenter  v. 
Bell,  Houghtaling  v. 
Benbow  v.  Moore 
Benners  ;;.  Clemens 
Bennett,  Whitten  v. 
Benton,  Cochran  v. 

V.  Bank 
Bernheim  v.  Raaz 
Berquier,  Desesbats  v. 
Besse  v.  Pellochoux 
Bethell,  In  re. 
Bethell  v.  Bethell 
Bibb,  Hawley  v. 

BiGELOW  I'.  BURNHAM 

Birchall,  Baum  v. 

Blackwell  v.  Webster 

Blancliard  v.  Russell 

Bland,  Robinson  v. 

Blanzy  Coal  Co.  v.  Davillier 

Blatchford  v.  Blatchford 

Bliss  V.  Braiiiard 

Crum  V. 
Blodgett  V.  Durgin 
Blythe  1-.  Atkes 
Boggs,  Frazier  v. 
Bonaffe,  Dord  v. 
Bonati  v.  Welsch 
Bond  c.  Cdmmings 

BONNAR,  D'HeRVAS  V. 

Bootiiby  r.  Plaisted 

Borden,  Rhodes  v. 

Borland,  Phelps  v. 

Boston  &  P.  Lumber  Co.,  Tillinghast  i 

Boulard,  Dupre  v. 

BowEN  V.  Newell 

Bowery  Sav.  Bank,  Schluter  v. 

Bowles  ;;.  Field 

Brabston  ?;.  Gibson 

Brackett  v.  Norton 

Bradlaugh  v.  De  Rin 

Bradshaw  v.  Newman 

Rockwell  V. 
Brainard,  Bliss  v. 
Brampton,  R.  v. 
Brayton,  Millard  v. 
Brazilian    Submarine    Tel.    Co., 

Chatenay  v. 
Breed,  ISIay  i-. 
Breitung,  Estate  of 
Breton  v.  Miles 
Brewer,  Danner  v. 
Bridger  l:  A.  &  S.  R.  R. 
Brien  v.  Marchildon 
Brigham's  Appeal 
Brine  v.  Ins.  Co. 
Brinkley  r.  A.  G. 
I'rintiiuil,  Van  Voorhis  v. 


Page 

Page 

17,25 

Bristow  17.  Sequeville 

364 

405 

Brockway  v.  Amer.  Ex.  Co. 

639 

159 

Bronson  v.  St.  Croix  Lumber  Co. 

15-> 

542 

Brook  v.  Brook 

59 

328 

Brook  V.  Vannest 

514 

255 

Brown  i'.  Brown 

158 

347 

V.  Free  land 

414 

401 

V.  Jones 

528 

17 

Brown  v.  Nevitt 

414 

273 

Brown,  Leroux  v. 

369 

369 

Brown's  Appeal 

464 

286 

Bruyere,  Pepin  v. 

273 

479 

BuGBEE,  Felch  v. 

489 

323 

Building  &  L.  Ass.,  Rowland  v. 

355 

25 

Burcli,  B.  &  L.  Assoc,  v. 

414 

512 

Burgess,  Kent  v. 

50 

362 

Burkam,  Collins  Iron  Co.  v. 

430 

269 

Burke,  Wolf  v. 

369 

228 

Burnett  v.  Pennsylvania  R.  R. 

546 

80 

Burnett,  Kendrick  v.                       345 

,  347 

441 

BURNHAM,  BiGELOW  V. 

423 

394 

Burton,  Central  Trust  Co.  v. 

422 

423 

Burwell,  Horntlial  y. 

159 

17,25 

Butler,  Newmarket  Bank  v. 

493 

402 

488 

375 

c. 

530 

216 

C,  A.  V. 

36 

401 

Cahalan  v.  Monroe 

240 

279 

Callaway  v.  Doe 

272 

528 

Cameron  v.  Watson 

286 

132 

Pugh  V. 

350 

273 

Cammell  i:  Sewell 

154 

362 

Campbell  v.  Coon 

152 

243 

Miller  v. 

464 

239 

Canada  Southern  Ry.  v.  Gebhard 

496 

32 

Canterbury  v.  Wyburn 

273 

356 

Canty,  Mumford  v. 

169 

493 

Carnegie  v.  Morrison 

394 

493 

Carnes,  Davenport  v. 

2.39 

y.358 

Carpenter  v.  Bell 

273 

98 

Carriage  Co.,  Amusement  Co.  v. 

176 

528 

Carroll,  A.  G.  S.  R.  R.  v. 

328 

240 

Carson,  Wilson  v. 

159 

17 

Carter  v.  Goode 

316 

512 

Carter  v.  Mutual  L.  Ins.  Co. 

187 

548 

Case  1-.  Dodge 

17 

514 

Cassin,  Touro  v. 

401 

400 

Castleman  v.  Jeffries 

231 

286 

Castro  V.  lilies 

228 

401 

Caulfield  i\  Sullivan 

286 

50 

Central  Imp.  Co.  v.  Crumlish 

548 

408 

Central    New    Eng.    &    Western 

. 

R.   R.,   HiGGINS  {•. 

320 

'  453 

Central  Trust  Co.  i:  Burton 

422 

488 

Chaize,  De  LizARDi  r. 

34 

353 

Chamberlain  ?•.  Chamberlain         269 

282 

239 

Chamberlin,  Glidden  v. 

612 

152 

Cliase  V.  Henry 

496 

332 

Chase,  Hill  r. 

361 

239 

Chatenay  r.  Brazilian  S.  T.  Co. 

453 

.  307 

Chew  r.  Read 

522 

154 

Cliicago  &  E.  L  R.  R.  ;•.  Rouse 

.328 

43 

Chicago,  M  &  S.  P.  Ry.  v.  Hazel 

544 

93  1 

Davis  '■. 

639 

TABLE    OF   CASES. 


vu 


I 


Chicago,  M.  &  S.  P.  Ry.,  ^'jus  ». 
Childs,  Tarbox  v. 
Choisi,  Lhermite  r. 
Church,  Moore  v. 
Churchill,  Despard  v. 
Citizens'  Bank,  Warner  v. 
Chiflin  V.  :\Ieyer 
Clark  v.  Graham 

Kerslake  i-. 

Proctor  V. 
Clarke,  Appeal  of 
Clegg  v.  Levy 
Clemexs,  Benners  V- 
Clements,  Assur.  Soc.  v. 
Cleveland    Machine    Works 

Lang 
Clocgh,  Emery  v. 
Coad  !•.  Home  Cattle  Co. 
Cochran  v.  Benton 
Cochrane,  Kennedy  v. 
Codman  v.  Krell 
Cohen,  Ins.  Co.  v. 
Colby,  Bank  of  Orange  v. 

S.  V. 
Collins  Iron  Co.  v.  Burkam 
Colonial  Bank,  Williams  v. 
Columbia  Bank  i'.  Walker 
Com.  v.  Graham 
Com.  v.  Lane 
Com  ,  Kinney  v. 

Com.   Mut.   Fire   Ins.   Co.   v.  Wm. 
Knabe  Mfg-  Co. 

COMPANHIA    DE    MoAGENS,    LoNDON 

Assurance  v. 
Comstock  V.  Smith 
Condry,  Smith  i-. 
Connolly  v.  Woolrich 
Cooke's  Trusts,  In  re 
Coon,  Campbell  v. 
Coons,  Kendall  v. 

Nat  r. 
Cooper  r.  Beers 
Cooper  v.  Cooper 
Coote  V.  Jecks 
Copelin.  Warren  r. 
Corbett  v.  Littlefield 
Cordell,  Hall  v. 
Cotting  V.  De  Sartiges 

COLTEAUX  V.  VaRTHALITI 

Cox  v.  U.  S. 
Cox,  Hewitt  V. 

Wilson  V. 
Craig  V.  Williams 

Tiiorp  V.  522 

Crandell  v.  Barker 
Cranstown,  Lord,  v.  Johnston 
Credit  Lyonnais,  Jacobs  v. 
Creditors,  Sadl  v. 
Crenshaw  v.  Anthony 
Crispin,  D  )glioni  '•. 
Cromwell  v.  Ins.  Co. 
Crum  V.  Bliss 

Crumlish  v.  Central  Imp.  Co. 
Culling  V.  Culling 
Cumming  ".  Chmming 
CuM.Mi.sGS,  Bond  '•. 


Page 
3-28 
476 
lO.j 
152 
U4 
522 
356 
150 
455 
286 
286 
363 
479 
352 


Page 
Curlier,  De  NicoLS  V.  210,216 

Currie,  Rothschild  v.  .„,  u  t.      -Tf 

Curtis  r.  Delaware,  L.  &  W.  R.  R.     o44 


D. 


176 
168 
414 

25 

400 

433 

508 

528 

356 

430 

464 

246 

59 

85 

93 

352 

438 
479 
345 
80 
11 
152 
246 
269 
255 
9 
158 
512 
159 
370 
307 
194 
473 
255 
286 
159 
528 


286 
195 
468 
220 
159 
255 
353 
279 
548 
50 
40 
239 


Dacosta  v.  Davis 
Dalrymple  v.  Dalrymple 
Dammert  v.  Osburn 
Danelli  r.  Danelli 
Danner  v.  Brewer 
Dart,  Walsh  v. 
Davenport  v.  Carnes 
Davidow  r.  Pa.  R.  R. 
Davillier,  Blanzy  Coal  Co.  v. 
Davis  V.  C.  M.  &  S.  P.  Ry. 
V.  Davis 
V.  Ins.  Co. 
Davis  r.  N.  Y.  &  N.  E.  R.  R. 
Davis  V.  Zimmerman 
Dacosa  v. 
Kelly  V. 
Sharp  V. 
Dawson,  Wick  i'. 
Dayton  r.  Adkisson 
Dean,  Thornton  r. 
De  Barros,  Sottomayor  v. 
De  Bauffremont  r.  De  Batjffre 

MONT 

De  Fogassieras  r.  Duport 

De  Geronino,  Siebberas  v. 

De  Giverville,  Richardson  v. 

De  Ham  v.  Mex.  Nat.  Ry. 

De  la  Vergne  R.  M.  Co.  r.  R.  R 

Delaware,  L.  &  W.  R.  R.,  Curtis  v 

De  Lizardi  r.  Chaize 

Delop  V.  Windsor 

Demond,  Akers  r. 

De  Nicols  c.  Curlier 

Denny  v.  WiHiams 

Dfpas  r.  Mayo 

De  Kin,  Bradlangh  r. 

De  Huyter,  Kindskopf  u. 

De  Sartiges,  Cotting  i-. 

Desesbats  /•.  Berquier 

Despard  r.  Cliurchill 

D'Hervas  v.  Bowar 

Dickinson  v.  Edwards 

Dike  v.  Erie  Ry. 

Dodge,  Barret  v. 

Case  r. 
Doe,  Callaway  v. 
Docrle,  Lewis  r. 
Doglioni  r.  Crispin 
Donald  r.  Hewitt 
Donohoe  r.  Donohoe 
Doolittle.  King  r. 
Dord  r.  BonartV 
Doughty,  Satterthwaite  v. 
Douglas  r.  Bank  of  Commerce 

Pratt  ('. 
Dousay,  Mason  v. 
Dow  r.  Howell 
Downs.  Barrows  i: 
Drew  i\  Smith 


19, 


210, 


369 

41 
269 

72 
152 
527 
239 
319 
530 
639 

50 
352 
316 
240 
369 

25 
414 
243 
124 
414 

72 

99 
273 
204 
243 
335 
181 
544 
34 
168 
416 
216 
369 
202 
514 
856 
307 
269 
144 
32 
414 
639 
355 
17 
272 
272 
255 
168 
26 
612 
362 
364 
522 
272 
367 
612 
452 
179 


Vlll 


TABLE    OF   CASES. 


Dugan  i\  Lewis 

Dunbar,  Gosline  v. 

Duncan  r.  Lawson 

Dunnigan  v.  Stevens 

Duport,  ])e  Fogassieras  v. 

Dupre  V.  Boulard 

Durbin,  Townes  v. 

Durgin,  Blodgett  v. 

Dustin,  Skelton  v. 

Dygert  v.  Vermont  L.  &  T  Co. 

E. 


Earl  V.  Godley 
Eastman,  Gale  v, 
Ebert,  Golson  v. 

Eddie  i\  Eddie  136 

Edwards,  Dickinson  v.  414 

Ehrt,  Rotta  v.  529 

Eldridge,  Heaton  v.  369 

Elliott,  Thayer  v.  394 

Ellsworth,  Marsh  v.  168 

Ely,  Atlantic  Phosphate  Co.  v.  356 

Emanuel  v.  White  512 

Emeiit  v.  Clough  168 

Enohin  r.  Wylie  269 

Ensly  L.  Co.  v.  Lewis  179 
Equitable    Life    Assurance   So- 

ciETv  V.  Clements  352 
Equitable  Trust  Co.,  Fowler  v.      425 

Erie  Ry.,  Dike  v.  639 

Evans-Snyder-Buel  Co.  v.  Bank  159 
Evansville  Ice  &  C.  S.  Co.  r.  Winsor    294 

Everett  v.  Vandryes  514 

Excliange  Bank,  Hubbard  v.  369 

Exposition  Cotton  Mills,  R.  R.  v.  542 

Eyre  v.  Storer  273 

Eyre,  Phillips  v.  308 


Fairchild,  Pennsylvania  Co.  v.  539 

Falls  V.  Savings  Co.  419 

Fant  V.  Miller  364 

Fareira  v.  Keevil  496 

Farley,  Adams  v.  286 

Fear  v.  Bartlett  507 

FeLCH  I'.  BUGBEE  489 

Fellows  ('.  Miner  269 
Ferrand,  Skottowe  r.  139 
Fessenden  v.  Taft  152,  419 
Ficklin,  Fidelity  Mut.  L.  Ass.  v.  353 
Fidelity  Mut.  L.  Ass.  v.  Ficklin  353 
Field,  Bowles  v.  17 
Findlay  v.  Hall  355 
Finlayson,  Meares  v.  430 
First  Nat.  Bank  v.  Nat.  Broad- 
way Bank  207 
Graham  v.  479 
First  Nat.  Bank,  Post  v.  25,  152 
Fisher  v.  Otis  414 
Flagg,  Offutt  V.  159 
Fleming,  Fouke  r.  1&8 
Fletcher,  Howard  v.  507 


Page 

Page 

422 

Pontes,  Machado  v. 

311 

158 

Ford  V.  Ford 

282 

,286 

143 

V.  Ins.  Co. 

353 

522 

Fouke  ('.  Fleming 

158 

273 

FouRGEAUD  IK  Santo  Venia 

35 

98 

Fowler  r.  Equitable 

Trust  Co. 

425 

240 

Fowler,  Whipple  v. 

154 

528 

Fowler's  Appeal 

206 

528 

Frazier  v.  Boggs 

273 

414 

Freeland,  Brown  v. 

414 

Freeman's  Appeal 

17 

Freese,  Grunwold  v. 

479 

Freyer,  Weinstein  v. 

176 

Frierson  r.  Williams 

25 

80 

Frierson  v.  Williams 

240 

430 

Filler,  Mason  v. 

239 

362 

Fuss  V.  Fuss 

228 

G. 


G.  V.  S. 

G.,  Manager  of  Court  Theatre  v. 

G.  A.  Gray  Co.  r.  Iron  Works  Co. 

Gaither,  Gates  r. 

Gale  v.  Eastman 

Galloway  v.  Standard  Fire  Ins.  Co. 

Garlinghouse,  U.  S.  v. 

Garrett,  Rosenbaum  v. 

Garrettson  v.  North  Atchison  Bank 

Gassett,  Sherman  v. 

Gates  V.  Gaither 

Gautreau,  Reyher  v. 

(lawtry,  Johnson  v. 

Gerhard,  Canada  So.  Rt.  v. 

GiBBS  V.  Sewastianoff 

V.  Societe  Industriellb 
Gibbs,  Wood  v. 
Gibson,  Brabston  v. 
Gidney  v.  Moore 
Gilman  r.  Stevens 
Glidden  v.  Cliamberlin 
Glover  v.  U.  S. 
Goddard  r.  Sawyer 
Godley,  Earl  v. 
Golson  V.  Ebert 
Goode,  Carter  v. 
Goodman  v.  Ry. 
Goodnow,  Hyde  v. 
Gorman,  Healt  v. 
Gosline  v.  Dunbar 
Gould,  Shaw  v. 
Gowan  r.  Gowan 
Graham  r.  First  Nat.  Bank 

Clark  v. 
Graham,  C.  v. 

Lichtenberger  v. 
Gray  v.  Holmes 
Gray,  Baldwin  v. 
Gray,  Reid  v. 
Green  v.  Van  Buskirk 
Greene,  Mut.  Aid  Assoc,  v. 
Greenville     Nat.    Bank     v.     Evans- 

Snydcr-Buel  Co. 
Greenwald  v.  Kaster 
Greer  v.  Poole 


259 

33 
179 
151 
430 
352 

9 
286 
358 
430 
151 
193 

25 
496 
528 
486 
512 
512 
228 
477 
512 
162 
152 

80 
362 
315 
335 
352 
474 
158 
107 
280 
479 
150 

59 
240 
13-J 
447 
240 
160 
434 

159 
504 
441 


TABLE  OF  CASES. 


IX 


Page 

Gregg,  Phillips  v. 

43,  50 

Stevens  v. 

512 

Griffin,  Van  Storch  v. 

!I3 

Grove,  In  re 

120 

Grunwald  v.  Freese 

479 

Guarantee  T.  &  S.  D.  Co. 

Jenkins  v.  282 

Guepratte  v.  Young 

17,  364 

Guerard  v.  Guerard 

286 

Guibert,  Lloyd  v. 

539 

Guy,  Shelby  v. 

158 

Habersham,  Jones  v.  269 

Hairston  i-.  Hairston  255 

Hale  V.  N.  J.  S.  N.  Co.  539 

Baldwin  r.  493 

Hobson  V.  272 

Hall  r.  Cordell  370 

Hall  V.  Pillow  159 

Findlay  v.  355 

Maynard  v.  419 

Hall,  Waverlt  Nat.  Bank  v.  445 

Halley,  The  337 

Kamblin,  Huse  v.  522 

Hamlyn  c.  Talisker  Distillery      456 

Handley  v.  Harris  159 

Harding,  Phipps  v.  512 

Harral  v.  Harral  231 

Harris,  Handley  v.  159 

Young  V.  350 

Harrison  v.  Harrison  154 

v.  Nixon  286 

Hastings  r.  Hopkinson  452 

Hawley  c.  Bibb  394 

V.  Hunt  493 

Haxtun,  Sheldon  v.  414 

Hazel  V.  C.  M.  &  S.  P.  Ry.  544 

Healey  v.  Reed  279 

Healy  0.  Gorman  474 

Heaton  v.  Eldridge  369 

Heine  v.  Ins.  Co.  243 

Hellmann's  Will  26 

Hemingray,  Bank  v.  512 

Henry,  Chase  v.  496 

Hernandez,  Succession  of  93 

Hervey  v.  Locomotive  Works  166 

Hess,  Long  v.  228 

Hewitt  V.  Cox  255 

Donald  v.  168 

Hicks  V.  Ins.  Co.  353 

HiGGiNS  V.  Central  N.E.&W.R.R.  320 

Hill  v.  Chase  361 

Hill  V.  Pine  River  Bank  17 

V.  Wright  455 

Lindsay  v.  430 

Woodruff  V.  400 

Hinman  v.  Parkis  240 

Hobson  V.  Hale  272 

Hodges,  Alves  v.  364 

Holder,  Aultman  d.  850 

Holland  v.  Pack  316 

Hohnan  i\  Hopkins  273 

Holmes,  Gray  »•.  1.32 

Holmes,  Raymond  v.  522 


Home  Cattle  Co.,  Coad  v.  414 

Hopkins,  Holman  v.  273 

Hopkinson,  Hastings  i".  452 

Hornthal  v.  Burwell  159 

Houghtaling  i.-.  Bell  369 

Howard  c.  Fletcher  507 

Howe  Machine  Co.,  Webster  v.  512 

Howenstein  r.  Barnes  512 

Hubbard  r.  Exchange  Bank  369 

Hudgins,  Riddle  v.  210 

Huey,  Appeal  of  9 

llufiman,  Scheferling  v,  220 

Hufnagle,  Swank  v.  23, 151 

Hunt  v.  Jones  367 

Hunt  V.  Standart  522 

Hawley  r.  493 

Hunt,  Moultrie  v.  261 

Huse  V.  Hamblin  522 

Hutchings,  Smith  c.  159 

Hyatt  I'.  Bank  512 

Hyde  v.  Goodnow  352 

Hyman  v.  Schlenker  228 

Hyslop,  Maxwell  v.  286 


lilies,  Castro  v. 

228 

Illinois  Central  R.  R 

.  V.  Beebe 

542 

Industrie,  The 

539 

Ingalls,  Alferitz  v. 

159 

Inland    Revenue 

Commissioners 

Baring  r. 

848 

Insdeth,  Pierce  v. 

527 

Ins.  Co.  V.  Sawyer 

353 

Archer  v. 

401 

Brine  v. 

154 

Cromwell  v. 

353 

Davis  V. 

352 

Ford  V. 

353 

Hicks  V. 

353 

Mavro  v. 

548 

Irwin's  Appeal 

273 

Ivey  V.  Lalland 

401 

Jackson  v.  Amer.  Mtg.  Co.  414 

Jackson  v.  Tiernan  467 

Jackson  Iron  Co  ,  Kobogum  v.  80 

Jacobs  c  Credit  Lyonnais  468 

James,  Bell  v.  401 

Jecks,  Coote  v.  158 

Jefferson,  Amer.  F.  L.  &  M.  Co.  v.  422 

Jeffries,  Castleman  v.  231 

Jenkins  r.  G.  T.  &  S.  D.  Co.  282 

Jennings  v.  Jennings  286 

John  A.  Tolman  Co.  v.  Reed  355 

Johnson  i'.  Gawtrj'  25 

V.  John.son  80 

A.  A.  &  F.  S.  R.  R.  y.  355 

Pondsford  v.  93 

Johnston,  Lord  Cranstown  r.  195 

Jones  r.  n.i}>ersham  2('>!' 

r.  Taylor  159 


TABLE    OF    CASES. 


Jones,  Brown  v.  ^'^^ 

Jones,  Hunt  v.  367 

Jones,  McKee  v.  405 

Junction  K.  R.  v.  Ashland  Bank  414 

Junkermann,  Shuenfeldt  v.  362 


Kaigler,  Peterson  v.  159 

Kanaga  v.  Taylor  159 

Kane,  Van  Reimsdyk  v.  362 

Kaster,  Greenwald  v.  504 

Keenan  v.  Stimson  159 

Keevil,  Fareira  v.  496 

Keith  V.  Keitli  272 

Keller  r.  Paine  166 

White  V.  286 

Kelley,  Barrett  v.  179 

Kelly  V.  Davis  '2o 

Smith  V.  124 
Kelly  Axe  Mfg.  Co.,  Park  Bros.  & 

Co.  V.  360 

Kendall  v.  Coons  246 
Kendrick  v.  Burnett                        345,  347 

Kennedy  v.  Cochrane  400 

Kennedy,  S.  i\  98 

Kent  V.  Burgess  50 

Kentucky  v.  Bassford  401 
Kentucky  Com.  Bank  v.  Barksdale      522, 

527 

Kerr,  McGregor  v.  159 

Kerslake  v.  Clark  455 

Ketcham,  Tiiompson  v.  9 

Key,  Scott  v.  124 

King  V.  Doolittle  51^ 

King  v.  Sarria  448 
King,  South  African  Breweries  v.         388 

Kinney  v.  C.  93 

Kitteridge,  Lawrence  v.  253 
Knight  Templars   &  M.  Mux.  Aid 

Assoc,  r.  Greene  434 

Knott,  Lyon  r.  240 
Knowles  Loom  Works  v.  Vacher    179 

Kobogum  V.  Jackson  Iron  Co.  80 

Kohne's  Estate  26 

Kraenier  v.  Kraemer  240 

Krell,  Codman  v.  433 

Kyle,  Thurman  v.  154 


Lake,  Oliver  v.  455 

Lalland,  Ivey  v.  401 

Lamington,  The  315 

Lane,  C.  v.  85 

Lane,  Watson  v.  350 
Lang,  Cleveland  Machine  Works 

V.  176 

Langworthy  v.  Little  158 

Lapham  r.  Olney  272 

Larendon,  Succession  of  152 

La  Selle  r.  Woolery  246 

Lawrence  r\  Kitteridge  253 

Lawson,  Duncan  v.  143 


Page 

Lebel  v.  Tucker  612 

Lee  v.  Abdy  462 

Mack  v.  356 

Lee,  Strawberry  Point  Bank  v.  512 

U.  S.  Bank  v.  159 

Le  Forest  v.  Tolman  315 

Legg,  In  re  181 

Leon,  The  347 

Leowolf,  Stebbins  v.  478 

Leroux  v.  Brown  369 

Lett,  £x  parte  26 

Levy,  Clegg  v.  363 

Lewis  V.  Doerle  272 

Lewis's  Estate  255 

Lewis,  Dugan  v.  422 

Ensly  L.  Co.  v.  179 

Ry.  V.  332 

Lewiston  Mill  Co.,  Wilson ».  372 

Lhermite  r.  Choisi  105 

Lichtenberger  r.  Graham  240 

Lincoln  v.  Perry  286 

Lindsay  v.  Hill  430 

Lingen  v.  Lingen  128 

Li  Shee,  Rep.  v.  44 

Little,  Langworthy  v.  158 

Littlefield,  Corbett  v.  159 
Liverpool  &  G.  W.  Steam  Co.  v. 

Phexix  Ins.  Co.  531 

Lloyd  V.  Guibert  539 

Loftus  V.  Bank  231 
London  Assurance  v.  Companhia 

de  Moagens  438 

Long  V.  Hess  228 

LoRiNG  V.  Neptune  Ins.  Co.  548 

Louisiana  Ins.  Co.,  Shiff!\  441 
Louisville  &  Nashville  R.  R.  v. 

Whitlow  329 
Louisville  &  N.  R.  R.  v.  Williams  335 
Low,     Wayne     County     Savings 

Bank  r.  428 

LuM  Lin  Ying,  In  re  43 

Lynch  v.  Paraguay  255 

Lyon  V.  Knott  240 

V.  Ogden  273 

Wooley  V.  522 


M. 

McAllister  r.  Smith  414 

McAtee,  Smith  v.  228 

McCamber,  Ames  v.  158 

McCartney  v.  Osburn  286 

McCollum  v.  Smith  145 

McDeed  v.  McDeed  43 

Macdonald  v.  IMacdonald  269 

McGhee,  Morgan  v.  80 
McGoon  V.  Scales                            152,  154 

McGregor  v.  Kerr  159 

Machado  v.  Pontes  311 

Mack  r.  Lee  356 

]\IcKee  V.  Jones  405 

McKenna,  Succession  of  239 

Mackey  v.  Pettyjohn  158 

McLean,  Smith  v.  159 

McLennan  v.  McLennan  77 


TABLE    OF    CASES. 


XI 


Ins. 


McLeod  r.  R.  R. 

Madden,  Russell  v. 

Madrid,  Phillips  v. 

Mahler  v.  Schirmeb 

Main  i'.  Messner 

ISIale  v.  Roberts 

Mallac,  Simoxin  v. 

MaxaCxER  of  Court  Theatre  v.  (j. 

Manton  i-.  Seiberling 

Marchildon,  Brien  v. 

Marsh  v.  Ellsworth 

Marshall,    Nichols   &   Shepard 

Co.  c. 
Martel,  Retnaud  v. 
IMartin,  In  re 
Martin,  Melvin  v. 
Marvin  Safe  Co.  v.  Norton 
Mason  v.  Dousay 

V.  Fuller 
Maspons  v.  Mildred 
Masury  v.  Arkansas  Nat.  Bank 

Matthews  v.  Murchison  1' 

Stix  V. 

Mavro  v.  Ins.  Co. 

Maxwell  v.  Hyslop 

May  V.  Breed 

Maynard  v.  Hall 

Mayo,  Depas  v. 

Meares  c.  Finlayson         ^ 

Mechanics'    &    Traders 
Heine  v. 

Melbourn,  Ex  parte 

Melchers,  National  Board  v. 

Melvin  v.  Martin 

Merchant's   Despatch   Transpor- 
tation Co.,  Talbott  v. 

Merchants'  Life  Assoc,  Seiders  v. 

Meroney  v.  Atlanta  N.  B.  &  L.  Assoc 

Mershon  v.  ]Moors 

Messimt  i\  Registry 

Messner,  Main  t: 

Mexican  Nat.  Ry.,  De  Ham  v.       o\\) 

Meyer,  Chitlin  '•. 

Mildred,  Maspons  r. 
Miles,  Breton  v. 
Millar,  Vininji  v. 

MlI.LARD  V.  BrAYTON 

Miller  v.  Campbell 
r.  Miller 
V.  Wilson 
Fant  V. 
Miller,  Sell  v. 
MiLLiKKN  r.  Pratt 
Mills  r.  Wilson 
Pattison  v. 
Minor,  I^Y-llows  r. 
Missouri  Steamship  Co.,  Inre 
Mitchell  V.  Ward 
Monroe.  Cahalan  v. 
Monteith  v.  Monteith 
Moore  r.  Church 
Beribow  r. 
(;i(lney  '•. 
Moors,  Merslion  v. 
Mor^'un  V.  McGhee 


Morgan  v.  N.  O.  M.  &  T.  R.  R. 

Morris,  Thatcher  v. 

Morrison,  Carnegie  v. 

Mott  I'.  Rowland 

Moultrie  v.  Hunt 

Mount  Hope  Iron  Co.,  Perry  v. 

Moxham,  The 

Mullen  v.  Read 

Muniford  v.  Canty 

Muncie  Nat.  Bank,  Smith  v. 

Munro  v.  Munro 

Murchison,  Matthews  v. 

Mutual  Life  Ins.  Co.  v.  Cohen 

Carter  v. 
Muus  v.  Muus 

N. 


Nat  V.  Coons 
Natchitoches,  Iron  Co.  v. 
National  Board  v.  Melchers 
National  Broadway  Bank,  First 
Nat.  Bank  v. 


Page 
601 
401 
394 
4-29 
261 
857 
345 
431 
159 
414 
124 
17,  367 
508 
187 
228 


269 
164 

548 


Assoc.  V.  Burch 


11 


542 

394 

414 

179 

148 

408 

335 

35G 

455 

239 

159 

408 

464 

124 

369 

364 

25 

,355 

355 

455 

269 

381 

255 

240 

145 

152 

286 

228 

179 

80 


Nat.  Mut.  B.  &.  L 
Neal,  Todd  v. 
Neeilham  v.  R.  R- 
Neptune  Ins.  Co.,  Loring  v. 
Nevitt,  Brown  v. 
Newell,  Bowen  v. 
New  England  Mtg.  Sec.  Co.,  Odom  v. 
New  Jersey  S.  N.  Co.,  Hale  v. 
Newman,  Bradshaw  v. 
Newmarket  Bank  v.  Butler 
New  ( )rleans.  Sickles  ik 
New  Orleans,  M.  &  T.  R.  R.,  Mor- 
gan V. 
New  York  &  New  England  K.  K., 

Davis  i\  ^  ,  , 

New  York  &  N.  E.  R.  R.,  Walsh  v. 
Nftqobcla  ik  Sihele 
Nichols  V.  Porter 

Nichols  &  Shepard  Co.  v.  Mar- 
shall 

Nixon,  Harrison  >'. 

Njus  r.  C.  M.  &S.  P.  Ry. 

Norman  '■.  Norman 

Northampton    Mut.   Live   Stock 
Ins.  Co.  v.  Tuttle 

North  Atchison  Bank,  Garrettson  r. 

Northern  Pacific   R.  R-  i^"-  Bab- 
cock 

N.  W.  Bank  i\  I'oynter 

Norton,  Brackett  v. 

Norton,  Marvin  Safe  Co.  v. 

Norton,  Pritchard  v.  ' 

NoTT,  Staples  v.  3o4, 


207 
414 
522 
319 
548 
414 
528 
414 
539 
400 
493 
282 


O. 

Gates,  Williams  v. 
Odom  V.  N.  E.  Mtg.  Sec  Co. 
Otrnt  ('.  FlatiK 
()(rden,  Lyon  /•. 
0(;iLviE,  Queen  v. 


501 

316 

328 

80 

612 

21 
286 
328 

44 

350 
358 

336 
168 
548 
171 

388 
512 


93 
414 
159 
278 
488 


Xll 


TABLE    OF   CASES. 


Page 

Oliver  v.  Lake  455 

Olney,  Lapham  v.  272 

Ory  v.  Winter  511 

Osburn,  Dammert  v.  269 

McCartney  v.  286 

Otis,  Fisher  v.  414 

OVERMANN,  ROUQUETTE  V.  522 


Pack,  Holland  v.  315 

Packard,  Bell  v.  17 

Paine,  Keller  v.  166 

Palmer,  Electric  Co.  v.  477 

Panama  R.  R.,  Whitford  v.  315 

Pancoast  v.  Travelers'  Ins.  Co.  414 

Paraguay,  Lynch  v.  255 

Park  Bros.  &  Co.  v.  Kelly  Axe  Mfg. 

Co.  369 

Parkis,  Hinnian  v.  240 

Patterson,  S.  i\  43 

Pattison  v.  Mills  455 

Pavey,  Purdom  v.  203 

Pawcatuck  Nat.  Bank  v.  Barber  528 

Pearson  v.  Pearson  98 

Pellochoux,  Besse  v.  228 

Penfield  v.  Tower  202,  282 

639 
93 
546 
319 
158 
539 
325 
414 
352 
273 
522,  527 
419 
357 
286 
159 
255 
158 
49:-J 


Peninsular  &  O.  S.  N.  Co.  v.  Shand 
Pennegar  v.  S. 

Pennsylvania  R.  R.,  Burnett  v. 
Pennsylvania  R.  R.,  Davidow  v. 

Sleeper  ;,•. 
Pennsylvania  Co.  v.  Fairchild 
Pennsylvania  Co.,  Alexander  v. 
People's  B.  &  L.  Assoc,  Andruss  v. 
Peoples'  Mut.  Ben.  Soc,  Voorheis  v 
Pepin  r.  Bruyere 
Perkins,  Snow  v. 
Perlee,  Scott  v. 
Perry  v.  Mount  Hope  Iron  Co. 
Perry,  Lincoln  v. 
Peterson  c.  Kaigler 
Petit,  Succession  of 
Pettyjohn,  Mackey  v. 
Phelps  V.  Borland 
Phelps  &  Bigelow  W.  M.  Co.,  Inv. 

Co.  V.  154 

Phenix  Ins.  Co.,  Liverpool  &  G. 

W.  Steam  Co.  v.  531 

Phillips  v.  Eyre  .308 

Phillips  V.  Gregg  43,  50 

V.  Madrid  93 

Phipps  V.  Harding  512 

Phcenix  Nat.  Bank  u.Batchelleb    493 
PiCKRELL,  Robertson  v.  269 

Pierce  i\  Insdeth  527 

Watriss  v.  430 

PiERCY,  In  re  279 

Pillow,  Hall  V.  169 

Pine  r.  Smith  419 

Pine  River  Bank,  Hill  v.  17 

Plaisted,  Boothby  v.  356 

Pollard,  Ex  parte  198 

Pond,  Andrews  v.  409 

Pondsford  v.  Johnson  93 


Page 
Poole,  Greer  v.  441 

Porter,  Nichols  v.  512 

Portsmouth  Bridge,  Beecham  v.      328 


11 


Post  V.  First  Nat.  Bank 
Poynter,  N.  W.  Bank  v. 
Pratt  V.  Douglas 
Pratt,  Milliken  v. 
Price  V.  Tally 
Price,  //;  re 
Price,  Astoi  v. 
Priest,  Acker  v. 
Pritchard  v.  Norton 
Proctor  V.  Clark 
Pryor  ;•.  Wright 
Public  Parks  Amusement  Co.  v.  Car- 
riage Co. 
Pugh  V.  Cameron 

Pullis  Bros.  Iron  Co.  v.  Natchitoches 
Purdom  v.  Pavey 


Q. 

Qdartin  r.  Quartin 
Queen  v.  Ogilvie 
Queen,  Robinson  v. 
Queensland       Mercantile 
Agency  Co.,  In  re 


26,  161 
168 
272 
365 
433 
297 
419 
200 
388 
286 
527 


R. 


Raaz,  Bernheim  v. 
Rabun  i\  Rabun 

Railroad  or  Railway  v.  Exposition 
Cotton  Mills 

V.  Lewis 

De  la  Vergne  R.  M.  Co.  v. 

Goodman  v. 

McLeod  V. 

Needham  v. 

Rudiger  v. 
Ramsay-,  Allshouse  v. 
Raymond  i-.  Holmes 
Read,  Chew  v. 

Healey  v. 
Reaume,  Arbuckle 
Reed,  John  A.  Tolman  Co.  r. 
Reed,  Mullen  v. 
R.  V.  Brampton 
Registry,  Messimy  v. 
Reid  V.  Gray 

Goods  of 
Rep.  c-  Li  Shee 
Reyher  v.  Gautreau 
Reynaud  v.  Martel 
Rhode  Island  Locomotive  Works, 

Hervey  v. 
Rhodes  v.  Borden 
Richardson  v.  De  Giverville 

?•.  Rowland 
Richards,  T.  &  P.  Ry.  v. 
Riddle  v.  Hudgiiis 
Ridley,  Woods  v. 
Riley,  Townsend  v. 
Rindskopf  i-.  De  Ruyter 


176 
350 
164 
203 


295 
483 
151 

182 


362 
158 

542 
332 
181 
335 
316 
319' 
335 
369 
522 
522 
279 
404 
355 
431 

50 
148 
240 
294 

44 
193 

39 

166 
493 
243 
404 
323 
210 
614 
414 
356: 


TABLE  OF  CASES. 


XUl 


Roberts  v.  Atherton 
Roberts,  Male  v. 
Roberts,  Van  Sant  r. 
Robertson  r.  Pickrell 
Robinson  l:  Bland 
Robinson  v.  Queen 
Roche  r.  Washington 
Rockwell  V.  Bradshaw 
Kosenbaum  v.  Garrett 
Ros<  V.  Ross 
Rothschild  v.  Currie 
lioTTA  v.  Ehrt 

ROLQLETTE  V.  OvERMANN 

Rouse.  C.  &  E.  I.  R.  R.  v. 
Rowel  1.  Dow  V. 
Rowland  v.  B.  &  L.  Ass. 

Mott  I'. 

Richardson  v. 
Rucker,  Ex  parte 
Rudiger  v.  R.  R. 
Russell  I'.  Madden 

Blanchard  v. 
Rustad,  Wilson  v. 


S.  V.  G. 

St.  Clair  Tunnel  Co.,  Turner  v. 

St.  Croix  Lumber  Co.,  Bronson  v. 

Samuel  v.  Arrouard 

Sands  v.  Smith 

Sankey,  Van  Matre  v. 

Santo  Venia,  Focrgeaud  v. 

Sarria,  King  v. 

Satterthwaite  v.  Doughty 
Saul  v.  His  Creditors 

Savings  Bank  v.  National  Bank 
Savings  Co.,  Falls  v. 

Sawyer,  Goddard  v. 
Ins.  Co.  V. 

Sayn-Wittgenstein  Sayn,  Affair 
of 

Scales,  McGoon  v.  152, 

Scheferling  r.  Huffman 

ScHiRMEK,  Mahler  v. 

Schlcnker,  Hyman  v. 

Schluter  v  Bank 

Scotland,  The 

Scott  V.  A.  G. 

Scott  y.  Ket 
V.  Perlee 

Scott  V.  Seymour 

Scott,  Valery  v. 

Scrimshire  v.  Scrimshire 

ScuDDKR  V.  Union  Nat.  Bank 

Seiberling,  Manton  v. 

Seiders  v.  Merchants'  Life  Assoc. 

Sell  v.  Miller 

Sequeville,  Bristow  v. 

Skwall  v.  Wilmer 

Sewastianoff,  Gibbs  v. 
Sewell,  Amer.  F.  M.  Co.  v. 
Sewell,  Cam.mell  v. 
Seymour,  Scott  r. 
Shain,  U.  S.  S.  &  L.  Co.  -.•. 


259 
328 
152 
251 
429 
132 
35 
448 
364 
220 
512 
419 
152 
353 

101 
154 
220 
190 
228 
240 
341 

93 
124 
419 
314 
372 

43 
364 
152 
394 

25 
3f)4 
302 
528 
419 
l.'-.4 
314 
414 


Shand,  P.  &  O.  S.  N.  Co.  v. 
Sharp  r.  Davis 
Sliaiiuck  V.  Bates 

S.  f. 
Shaw  v.  Gould 
Shelby  i-.  Guy 
Sheldon  v.  Haxton 
Sheldon,  Aymar  v. 
Sherman  v.  Gassett 
Shiff  '-.  La.  Ins.  Co. 
Shuenfehlt  r.  .lunkermann 
Sickles  V.  New  Orleans 
Siebberas  v.  De  Geronino 
Sihele,  Ngqobela  v. 
Simonds  v.  White 
SiMONiN  V.  Mallac 
Skelton  v.  Dustin 
Skottowe  v.  Ferrand 
Skottowe  V.  Young 
Sleeper  r.  Pa.  R.  R. 
Smart,  Williamson  v. 
Smith  V.  Condry 
V.  Hutchings 
1-.  Kelly 
Smith  v.  McAtee 
Smith  V.  McLean 

V.  Muncie  Nat.  Bank 
I'.  Smith  43^ 

Smith,  Alcock  v. 
Smith,  Comstock  v. 
Drew  V. 
McAllister  v. 
Smith,  McCollum  v. 
Smith,  Pine  v. 

Sands  v. 
Snow  r.  Perkins  522, 

SociETE  Industrielle,  Gibbs  v. 
Sonierville  c.  Somerville 

SOTTOMAYOR  i\  De  BaRROS 

South  African  Breweries  v.  King 

Spahn,  Armitage  v. 

Stacy,  Barker  v. 

Staigg  v.  Atkinson 

Staigg,  Atkinson  v. 

Standard  Fire  Ins.  Co.,  Galloway  v. 

Standart,  Hunt  v. 

Staples  v.  Nott  354, 

S.  V.  Colby 

V.  Kennedy 
V.  Patterson 
r.  Shattuck 
V.  Tutty 
V.  Williams 
I'cnnegar  r. 
State  S.  S.  Co.,  In  re 
Steiuuns  V-  Leowolf 
Stevens  r.  Gregg 
Dunnigan  v. 
Gilman  r. 
Stimson,  Keenan  v. 
Stix  V.  Matthews 
Storer,  Eyre  v. 

Strawberry  Point  Bank  v.  Lee 
StulTs  Estate 
Sturdivaiit  v.  l?ank 
Sullivan.  Caultield  v. 


Page 
639 
414 
151 
93 
107 
158 
414 
618 
430 
441 
362 
282 
204 
80 
548 
50 
528 
139 
140 
158 
148 
345 
159 
124 
228 
159 
414 
488 
514 
479 
179 
414 
145 
419 
429 
527 
486 
2.55 
72 
388 
159 
159 
283 
286 
352 
522 
512 
356 


48 

93 

98 

355 

93 

346 

478 

612 

622 

477 

169 

612 

273 

512 

93 

419 

286 


XIV 


TABLE    OF   CASES. 


Sunderland,  Estate  of 
Sutton  V.  Warren 
Swank  i'.  Hufnagle 
Swann  v.  Swann 


Page 

132 

72 

23,  151 

405 


Taft,  Fessenden  v.  152,  419 

Talbot,  Baxter  Nat.  Bank  v.  405 

Talbott  I'.  Merchant's  D.  T.  Co.  542 

Talisker  Distillery,  Uamlyn  v.  456 

Tally,  Price  ".  433 

Tarbox  v.  Childs  476 

Taylor,  Glass  Co.  v.  355 

Jones  i\  159 

Kanaga  v.  159 
Taylor  Bros.  Iron-Works  Co.,  G.  A. 

Gray  Co.  v.  179 

Tenant  v.  Tenant  505 

Tennant,  White  v.  255 

Texas  &  P.  Ry.  v   Richards  323 

Thatcher  v.  Morris  401 

Thayer  v.  Elliott  394 

Thompson  v.  Ketchara  9 

Yates  V.  286 
Thompson- Houston    Electric   Co.   v. 

Palmer  477 

Thornton  v.  Dean  414 
Thorp  V.  Craig                                522,  528 

Thurman  v.  Kyle  154 

Tiernan,  Jackson  v.  467 

Tillinghast  v.  B.  &  P.  Lumber  Co.  358 

Todd  V.  Neal  522 

ToLMAN,  Le  Forest  v.  315 

Touro  V.  Cassin  401 
Tower,  Penfield  v.                          202,  282 

Townes  v.  Durbin  240 

Townsend  v.  Riley  414 

Travelers'  Ins.  Co.,  Pancoast  v.  414 

Triplett,  Washington  Bank  v.  528 

Tucker,  Lebel  v.  512 

Turner  v.  St.  Clair  Tunnel  Co.  328 

Tuttle,  Ins.  Co.  v.  350 

Tutty,  S.  V.  98 


u. 


Underwood  i'.  Amer.  Mtg.  Co.  414 

Union  Nat.  Bank,  Scddder  v.         364 

U.  S.  ('.  Garlinghouse  9 

Cox  V.  473 

Glover  y.  152 

U.  S.  Bank  v.  Lee  159 

U.  S.  Inv.  Co.  V.  Phelps,  &c.  Co.  154 

U.  S.  S.  &  L.  Co.  V.  Shain  414 

Usher  y.  W.  J.  R.  R.  335 


Vacher,  Knowles  Loom  Works  v.  179 
Valery  v.  Scott  372 

Van  Buskirk,  Green  v.  160 

Vandryes,  Everett  v.  514 


Page 

Van  Matre  v.  Sankey  132 

Vannest,  Brook  v.  514 

Van  Reimsdyk  v.  Kane  362 

Vansant  i;.  Roberts  282 

Van  Steenwyk,  Washburn  v.  286 

Van  Storch  v.  Griffin  93 

Van  Voorhis  v.  Brintnall  93 

Varthaliti,  Cocteadx  v.  194 

Vermont  L.  &  T.  Co.,  Dygert  v.  414 

Vining  v.  Millar  159 

Voorheis  v.  Peoples'  Mut.  Ben.  Soc.  352 


w. 


Wade,  Williams  v.  522 

Walker,  Atwater  v.  419 

Colun)bia  Bank  v.  246 

Wall  v.  Williamson  77 

Walsh  r.  Dart  527 

V.  N.  Y.  &  N.  E.  R.  R.  828 

Ward,  Mitchell  v.  255 

Ware  v.  Wisner  294 

Warner  v.  Citizens'  Bank  522 

Warren  v.  Copelin  512 

Ames  Iron  Works  v.  166 

Sutton  V.  72 

Warter  !'.  Warter  76 

Washburn  v.  Van  Steenwyk  286 

Washington,  Roche  v.  81 

Washington  Bank  v.  Triplett  528 

Waters  i\  Barton  158 

Watriss  v.  Pierce  430 

Watson  V.  Lane  350 

Watson,  Cameron  v.  286 

Waverly  Nat.  Bank  v.  Hall  445 
Wayne   County  Savings  Bank  v. 

Low  42& 

W^ebster  v.  Howe  Machine  Co.  612 

Webster,  Blackwell  v.  402 

Weinstein  i:  Freyer  176 

Wells,  Worcester  Bank  v.  358 

Welsch,  Bonati  v.  243 
Western  N.  Y.  &  P.  R.  R.,  Wooden 

V.  332 

West  Jersey  R.  R.,  Usher  v.  335 

Wheeler,  Anderson  v.  493 

Barter  v.  547 

Wood  V.  17,  25,  243 

Whipple  V.  Fowler  154 

White  V.  Keller  286 

V.  Tennant  265 

Emanuel  v.  512 

Sinion<is  v.  548 

Whitford  v.  Panama  R.  R.  315 

Whitlow,  L.  &  N.  R.  R.  v.  329 

Written  v.  Bennett  323 

Wick  V.  Dawson  243 

William  Glenny  Glass  Co.  v.  Taylor    355 

Wm.  Knabe  Mfg.  Co.,  Ins.  Co.  i'.  352 

Williams  v.  Colonial  Bank  464 

V.  Gates  93 

r.  Wade  522 

Craig  r.  169 

Denny  i:  369 

Williams,  Frierson  v.  25,  240 


TABLE  OF  CASES. 


XV 


Williams,  L.  &  N.  R.  R.  v. 

S.  c. 
Williamson  v.  Smart 

Beall  V. 
Williamson',  Wall  v. 

WiLMKK,  SeWALL  v. 

Wilson  V.  Carson 

V.  Cox 

V.  Lewiston  Mill  Co. 

V.  Kustad 

Miller  i-. 

Mills  V. 
Windsor,  Delop  v. 
Winsor,  Ice  &  C.  S.  Co.  v. 
Winter,  Ballard  v. 
Winter,  Oky  v. 
Wisner,  Ware  v. 
Wolf  V.  Burke 
Wood  V.  Gibbs 

V.  Wlieeler 
Wooden  v.  W.  N.  Y.  &  P.  R. 
Woodruff  V.  Hill 
Woods  V.  Ridley 
Woodward  v.  Woodward 
WooLERT,  La  Selle  v. 
Wooley  V.  Lyon 
Woolrich,  Connolly  v. 


Page 

335 

Worcester  Bank  v.  Wells 

355 

Wright,  Hill  v. 

148 

Pryor  v. 

159 

Wtburx,  Canterbury  v. 

77 

Wylie,  Enoliin  v. 

302 

Wynne  v.  Wynne 

159 

280 

372 

X. 

159 

369 

X.  V.  Y. 

355 

168 

294 

Y. 

159 

511 

Y.,  X.  V. 

294 

Yates  V.  Thompson 

369 

Young  V.  Harris 

512 

Gui'pratte  v. 

17,  25,  243 

tjkottowe  V. 

R.           332 

400 

514 

z. 

26 

246 

ZaMMARETTI  I'.  Zammaeetti 

522 

Zediker,  Bascom  v. 

80 

Zimmerman,  Davis  v. 

Page 
358 
455 
527 
273 
269 
273 


37 


37 

286 

350 

17,  364 

140 


258 
366 
240 


CASES  ON  THE  CONFLICT  OF  LAWS. 


PART    III. 
THE  CREATION   OF   RIGHTS. 


CHAPTER   VI. 
PERSONAL   RIGHTS. 


SECTION   I. 

GENERAL    PRINCIPLES. 


Story  on  the  Conflict  of  Laws  (1834),  §§  18,  20,21,  22,  23,26, 
35. — Every  nation  possesses  an  exclusive  sovereignty  and  jurisdiction 
within  its  own  territory.  Tlie  direct  consequence  of  this  rule  is,  that 
the  laws  of  every  State  affect,  and  bind  directly,  all  property,  whether 
real  or  personal,  within  its  territory  :  and  all  persons  who  are  resident 
within  it,  whether  natural  born  subjects  or  aliens ;  and  als5  all  con- 
tracts made,  and  acts  done  within  it.  A  State  may,  therefore,  regu- 
late the  manner  and  circumstances  under  which  property,  whether 
real  or  personal  or  in  action,  within  it  shall  be  held,  transmitted, 
bequeathed,  or  transferred,  or  enforced;  the. condition,  capacity,  and 
state  of  all  persons  within  it ;  the  validity  of  contracts,  and  other 
acts,  done  within  it ;  the  resulting  rights  and  duties  growing  out  of 
these  contracts  and  acts  ;  and  the  remedies,  and  modes  of  adminis- 
tering justice  in  all  cases  calling  for  the  interposition  of  its  tribunals 
to  protect,  vindicate,  and  secure  the  wholesome  agency  of  its  own 
laws  within  its  own  domains. 

No  State  or  nation  can,  by  its  laws,  diroetl}-  affect  or  bind  propcrt}' 
out  of  its  own  territory,  or  persons  not  resident  therein,  whether  they 
are  natural  born  subjects  or  others.  This  is  a  natural  consequence  of 
the  first  proposition  ;  for  it  would  be  wholly  incompatible  with  the 
equality  and  exclusiveness  of  the  sovereignty  of  any  nation  that  other 
nations  shoukl  be  at  liberty  to  regulate  either  persons  or  tilings  witliin 
its  territories.     It  would  l)e  efjuivalent  to  a  declaration  that  the  sov- 

VOL.    II.  —  1 


2  GENERAL    PKINCIPLES.  [CIIAP.  VI. 

ereigntj'  over  a  territor}-  was  never  exclusive  in  any  nation,  but  onl}- 
concurrent  with  that  of  all  nations  ;  that  each  could  legislate  for  all, 
and  none  for  itself;  and  that  all  might  establish  rules,  which  none 
were  bound  to  obey. 

Although  the  laws  of  a  nation  have  no  direct  binding  force  or 
effect,  except  upon  persons  within  its  territories,  yet  every  nation  has 
a  right  to  bind  its  own  subjects  by  its  own  laws  in  every  other  place. 
In  one  sense,  this  exception  may  be  admitted  to  be  correct,  and  well 
founded  in  the  practice  of  nations  ;  in  another  sense  it  is  incorrect,  or, 
at  least,  it  requires  qualification. 

No  nation  is  bound  to  respect  the  laws  of  another  nation,  made  in 
regard  to  subjects  who  are  non-residents.  The  obligatory  force  of 
such  laws  cannot  extend  beyond  its  own  territories.  And  if  such  laws 
are  incompatible  with  the  laws  of  the  countr}-^  where  they  reside,  or 
interfere  with  the  duties  which  they  owe  to  the  countiy  where  they 
reside,  they  will  be  disregarded  by  the  latter.  Whatever  may  be  the 
obligatory  force  of  such  laws  upon  such  persons,  if  they  should  return 
to  their  native  country,  they  can  have  none  in  other  nations  where 
they  reside.  They  may  give  rise  to  personal  relations  between  the 
sovereign  and  subjects,  to  be  enforced  in  his  own  domains  ;  but  they 
do  not  rightfully  extend  to  other  nations.  Clauduntur  tenntorio.  Nor, 
indeed,  is  there,  strictly  speaking,  any  difference  in  this  respect 
whether  such  laws  concern  the  persons  or  the  property  of  native 
subjects.  A  State  has  just  as  much  intrinsic  right,  and  no  more,  to 
o-ive  to  its  own  laws  an  extraterritorial  force,  as  to  the  property  of  its 
subjects  situated  abroad,  as  it  has  in  relation  to  the  persons  of  its 
subjects  domiciled  abroad.  That  is,  as  sovereign  laws,  they  have  no 
obligation  or  power  over  either.  When,  therefore,  we  speak  of  the 
right  of  a  State  to  bind  its  own  native  subjects  everywhere,  we  speak 
only  of  its  own  claim  and  exercise  of  sovereignty  over  them,  and  not 
of  its  right  to  compel  or  require  obedience  to  such  laws  on  the  part  of 
other  nations.  On  the  contrary,  every  nation  has  an  exclusive  right  to 
regulate  persons  and  things  within  its  own  territory  according  to  its 
own  sovereign  will  and  polity. 

From  these  two  maxims  or  propositions  there  flows  a  third,  and  that 
is,  that  whatever  force  and  obligation  the  laws  of  one  country  have  in 
another,  depends  solely  npon  the  laws  and  municipal  regulations  of 
the  latter ;  that  is  to  say,  upon  its  own  proper  jurisprudence  and  polity, 
and  upon  its  own  express  or  tacit  consent. 

The  jurists  of  continental  Europe  have  with  uncommon  skill  and 
acuteness  endeavored  to  collect  principles  which  ought  to  regulate 
this  subject  among  all  nations.  But  it  is  very  questionable  whether 
their  success  has  been  at  all  proportionate  to  their  labor,  and  whether 
their  principles,  if  universally  adopted,  would  be  found  either  conven- 
ient or  desirable  under  all  circumstances. 

The  true  foundation  on  which  the  administration  of  international 
law  must  rest  is,  that  the  rules  which  are  to  govern  are  those  which 


SECT.  I.]  GENERAL    PKINCIPLES.  3 

arise  from  mutual  interest  and  utility,  from  a  sense  of  the  inconven- 
iences which  would  result  from  a  contrary  doctrine,  and  from  a  sort 
of  moral  necessity  to  do  justice  in  order  that  justice  may  be  done  to 
us  in  return. 

Dicey  on  the  the  Conflict  of  Laws  (1896),  -p  25.  —  The  object 
for  which  courts  exist  is  to  give  redress  for  the  infringement  of 
rio-hts.  No  court  intends  to  confer  upon  a  plaintiff  new  rights,  ex- 
cept in  so  far  as  new  rights  may  be  necessary  to  compensate  for,  or 
possibly  to  guard  against,  the  infringement  of  an  existing  right.  The 
basis  of  a  plaintiff's  claim  is  that,  at  the  moment  of  his  coming  into 
court,  he  possesses  some  right,  e.  g.,  a  right  to  the  payment  of  £20, 
which  has  been  violated ;  the  bringing  of  an  action  implies,  in  short, 
the  existence  of  a  right  of  action.  When,  therefore,  A  applies  to 
an  English  court  to  enforce  a  right  acquired  in  France,  he  must 
in  general  show  that,  at  the  moment  of  bringing  his  action,  he 
possesses  a  right  which  is  actually  acquired  under  P'rench  law,  and 
which  he  could  enforce  against  the  defendant  if  he  sued  the  defendant 
in  a  French  court.  A  complains,  for  example,  of  the  non-payment  of 
a  debt  contracted  by  X  in  Paris,  or  seeks  damages  for  an  assault  com- 
mitted on  him  by  X  in  Paris.  To  bring  himself  within  the  principle 
we  are  considering,  he  must  show  that  his  right  to  payment  or  to 
damages  is  actually  acquired.  He  must  show  that  the  debt  is  due 
under  French  law,  or  that  the  assault  is  an  offence  punishable  by 
French  tribunals.  English  law  does  not,  speaking  generally,  apply  to 
transactions  occurring  out  of  England  ;  hence  the  foundation  of  A's 
claim  is  that  he  wishes  to  enforce  rights  actually  obtained  in  France, 
and  he  will,  as  a  rule,  fail  to  make  out  his  case  unless  he  can  show 
that  the  grievance  of  which  he  complains  is  recognized  as  such  by 
French  law,  or,  in  other  words,  unless  he  can  show  a  right  to  redress 
recognized  by  the  law  of  France. 

Whether  such  a  right  actually  exists,  i.  e.,  whether  A  has  an  "  ac- 
quired right,"  is  a  matter  of  fact  depending  upon  the  law  of  France 
and  upon  the  circumstances  of  the  case. 

PiLLET,  "  Essai  d'un  systeme  gc'-m-ral  de  solution  des  conflits  des  lois  " 
(1894),  21  Clunet,  417,  711.  —  Whenever  the  question  is  raised  as 
to  the  international  nature  of  a  law,  one  of  two  answers  must  be  given  ; 
the  law  may  be  either  territorial  or  extraterritorial.  It  may  be  terri- 
torial, and  then  every  one  in  the  country  is  submitted  to  its  jurisdiction 
without  distinction  between  natives  and  foreigners  domiciled  or  not 
domiciled,  but,  upon  the  other  hand,  on  leaving  the  country,  each 
ceases  to  owe  it  obedience  ;  or  it  may  be  extraterritorial,  and  the 
contrary  effect  produced  ;  where  upon  once  being  applied  to  a  person 
(by  virtue  of  his  nationality  or  his  domicil,  opinions  differ)  the  law 
follows  him  everywhere.  .  .  . 

Law  should  combine,  and  always  does  combine,  certain  characteristics 


4  GENERAL   PRINCIPLES.  [CHAP.  VI. 

which  are  indispensable  to  its  eflfect,  qualities  without  which  it  would 
have  no  reason  for  existence.  .  .  .  We  shall  notice  here  but  two, 
the  onl}-  important  qualities  from  an  international  point  of  view, 
but  of  the  utmost  importance  :  continuitv  and  generality-  of  application. 
When  we  sa}'  that  law  is  by  its  nature  continuous,  we  mean  that  its 
authorit}-  should  be  uninterrupted  ;  from  the  day  of  its  promulgation  to 
the  day  of  its  repeal  the  law  must  always  be  lieard  and  obeyed.  .  .  . 
It  is  just  as  necessary  that  every  law  should  be  general  in  application 
to  its  subjects.  .  .  .  Order  is  necessary  to  every  State,  and  order 
exists  in  the  domain  of  law  only  in  so  far  as  the  law  is  applied  without 
distinction  to  every  person  within  the  limits  of  the  State.  .  .  . 

From  an  international  point  of  view,  continuity  necessarily  implies 
extraterritoriality,  generality  of  application,  territoriality.  .  .  .  For 
a  law  to  be  truly  continuous,  it  must  apply  under  all  circumstances 
to  the  person  subject  to  it,  it  must  follow  him  abroad  when  he  leaves 
his  country,  and  it  must  rule  all  his  affairs  there  as  well  as  in  his 
own  country.  ...  To  take  the  common  example  of  a  law  of  capacity  : 
suppose  it  ceases  to  apply  to  a  person  when  he  leaves  his  own  country, 
or  that  it  only  remains  inapplicable  to  such  of  the  person's  property  as 
is  situated  in  a  foreign  country,  and  it  will  be  clear  that  the  law  misses 
its  object  because  it  misses  continuity  of  etfect.  .  .  .  One  can  see  that 
if,  in  the  case  of  the  same  person,  a  period  of  complete  incapacity 
is  followed  by  a  period  of  limited  capacity,  all  the  results  that  the 
legislator  might  attain  by  the  rules  he  established  will  be  forever 
compromised  by  the  breach  of  continuity  which  will  be  produced  in 
the  application  of  the  rule.  In  the  same  way  generality  is  inseparable 
from  territoriality.  .  .  .  That  order  which  it  is  the  object  of  the  law 
to  establish  would  not  exist,  unless  all  matters  within  the  control 
of  the  society  which  is  ruled  by  the  law  were  equally  subject  to 
its  provisions.  .   . 

Now  let  us  see  what  would  happen  if  each  State  in  administering 
justice  should  carry  the  consequences  of  this  situation  to  its  logical 
conclusion.  ...  No  State  would  then  sutler  the  application  of  any 
foreign  law  in  its  territory.  Trusting  in  the  generality  of  its  own  law, 
and  the  territoriality  which  logically  flows  from  it,  the  State  would  as- 
sert its  authority  in  all  foreign  interests  which  asked  aid  of  its  justice. 
But  on  the  other  hand,  by  a  deduction  drawn  from  the  character  of 
continuity  and  extraterritoriality,  equally  belonging  to  it,  it  would 
apply  its  own  law  also  to  the  interests  of  its  own  subjects  in  foreign 
lands.  One  must  conclude  that  the  harmony  which  should  exist 
between  the  laws  of  various  countries  can  be  obtained  only  through 
a  sacrifice.  .  .  . 

The  solution  of  this  question  cannot  depend  in  every  case  on  the 
will  or  the  fancy  of  the  one  who,  as  jurisconsult,  or  as  judge,  has  it 
to  solve.  In  other  words,  the  territoriality  or  the  extraterritoriality  of 
laws  cannot  be  abandoned  to  arbitrary  will,  or  as  we  say,  in  terms 
at  once  fitter  and  more  classic,  to  the  comity  of  nations.   .  .  .     We 


SECT.  I.]  GENERAL   PRINCIPLES.  5 

must  discover  some  law  of  harmony,  choose  indifferently  or  for  simple 
reasons  of  equity,  either  the  territoriality  of  laws  or  their  extraterri- 
toriality ;  find  the  principle  of  harmony  which  will  destroy  as  little  as  pos- 
sible the  useful  effect  of  the  law,  or  in  other  words  leave  intact  as  great 
part  as  possible  of  the  authority  of  law.  .  .   .  Let  us  suppose  a  conflict 
on  the  age  of  majority,  in  our  country  twenty-one  years,  but  by  the 
foreign  personal  law  of  the  party  twenty-five  years.     The  French  judge 
has  before  him  two  solutions,  two  means  of  putting  an  end  to  conflict 
and  establishing  harmony  :  to  apply  the  local  law  by  virtue  of  its  terri- 
toriality, or  the  personal  law  of  the  foreigner  by  virtue  of  its  extraterri- 
toriality.    Each  of  the  solutions  has  its  advantages  and  disadvantages. 
The  first  is  more  favorable  to  the  public  order  and   credit;    if  it  is 
adopted,  every  one  within   the  territory  will  be  of  age  at  twenty-one 
years,  and  one  will  never  have  to  suspect  hidden  facts  which  may  lead 
to  the  application  of  a  foreign  law.     On  the  other  hand,  it  will  have  the 
disadvantage  that  the  foreigner  in  question  will  suddenly  come  of  age 
upon  crossing  the  boundary  of  the  country.     The  other  solution  would 
have  neither  this  disadvantage  nor  the  corresponding  advantage.     Can 
one  suppose  that  a  judge,  if  not  bound  by  any  provision  of  positive 
law,   could   hesitate   between  the  two?     The  experience  of  the   past 
answers  the  question  clearly.     Hesitation  is  impossible,  because,  of  the 
two  solutions,   the  first  in  return  for  a  slight  advantage  involves  a 
disadvantage  which  almost  totally  destroys  the  utility  of  such  a  law. 
What  is  the  use  of  prolonging  minority  until  a  given  age,  if  the  minor 
may  by  a  journey  free  himself  from  the  incapacity  ?     Such  a  solution 
reduces  almost  to  naught  the  authority  of  the  law  on  this  point,  whilst 
the  other  solution  maintains  the  chief  and  essential  features  of  its 
authority,  and  sacrifices  only  a  territorial  effect  of  little  importance 
in  this  connection.  .   .  .  The  great  school  of  "  statutaries "   thought 
that  the  international  effect  of  laws  should  depend  on  their  object; 
meaning  by  this  ambiguous  word,  object,  the  person  or  thing  which 
is  directly  and  immediately  affected  by  the  law.     We  thus  reach  the 
essential  distinction  between  the  two  classes,  —  real  laws  which  were 
territorial,  and  personal  laws  recognized  as  extraterritorial,  —  so  com- 
pletely that  the  two  expressions  were   synonymous.   .  .   .  The  extra- 
territorial  application   of  laws  relative  to   the  person  did   not  cease 
to  cause  them  doubt  and  even  remorse.     They  accepted  it,  but  usually 
in  spite  of  themselves  ;  as  is  sufficiently  proved  by  the  eagerness  with 
which  they  recurred  to  territoriality  whenever  on  the  slightest  pretext 
they  deemed  themselves  authorized  to  do  so.     In  fine,  the  distinction 
made    by   this    school,    even    supposing   it   applicable    to    the    facts 
(which   tlie   invention   of  "statutes   mixed"   shows  to   be  doubtful) 
had  no  principle  behind   it;  this  error  was  its  greatest,   but  it   was 
irremediable.  .  .  . 

One  cannot  deny  that  tlie  essential  feature  of  law  is  its  social  object. 
If,  in  fact,  one  analyzes  the  idea  of  law  in  any  one  of  its  applications, 
one  necessarilv  reaches  this  first  conclusion,  that  law  is  always  the  moans 


6  GENERAL   PRINCIPLES.  [CHAP.  VL 

employed  by  the  legislator  to  reach  a  determined  social  object.  .  .  . 
The  object  of  a  law  is  not  the  immediate  effect  it  has  in  view  :  that  is 
the  verj'  content  of  the  law,  the  means  employed  b^-  the  legislator  to 
reach  the  object,  not  the  object  itself.  .  .  .  The  social  object  to  be 
attained  is  tlie  raiso7i  d'etre  of  the  law,  gives  it  its  distinctive  character- 
istics, assigns  it  its  period ;  is  it  not  logical,  therefore,  to  conjecture 
that  its  international  effect  should  be  measured  b^'  its  social  object? 
Such  is  in  fact  the  rule  we  propose.  We  know  that  laws  are  b}'  nature 
at  once  territorial  and  extraterritorial,  that  they  may  in  international 
relations  preserve  but  one  of  these  characters  ;  we  tliink  that  in  each 
case  the  choice  of  character  should  be  determined  by  considering  the 
social  object  of  the  law.  We  shall  declare  territorial  all  laws  the  object 
of  which  could  not  be  attained  if  in  each  country  they  did  not  apply  as 
well  to  foreigners  as  to  citizens  ;  extraterritorial  all  laws  the  object  of 
which  requires  that  the}'  should  follow  everywhere  the  person  who  comes 
under  the  force  of  their  provisions.  In  every  case,  then,  we  shall  consult 
the  social  object  of  the  law  under  examination  ;  that  will  be  the  only 
key  to  the  problem  of  conflicts,  the  rule  by  which  we  shall  resolve 
whether  a  law  should  be  regarded  as  territorial  or  extraterritorial.  .  .  . 

Like  the  needs  which  it  is  their  purpose  to  satisfy,  laws  can  have  one 
only  of  two  objects  :  to  protect  the  private  interests  of  individuals,  or 
to  secure  the  conditions  of  existence  and  the  functional  operations  of 
the  bod}'  politic.  That  is  their  social  object,  the  result  to  which  they 
tend  ;  a  result  which  concerns  the  legislator  only  bv  reason  of  tbe  in- 
fluence it  exercises  on  the  condition  of  societ}'.  To  the  first  category' 
will  belong  laws  which  have  for  their  end  to  place  the  individual  in  the 
position  most  favorable  for  his  development  and  preservation  ;  such  are 
laws  of  the  family,  which  have  for  end  to  establish  in  the  persons  con- 
cerned a  unity  of  interests  and  responsibilities  conforming  to  their 
natural  affinities ;  in  the  same  way,  laws  which  have  for  end  to  advise, 
to  guide  those  who  cannot  look  out  for  themselves  ;  finally,  those  which 
will  have  the  good  result  of  saving  one  from  his  own  devices.  To  the 
same  category  belong  laws  destined  to  assure  to  ever}'  one  the  fruits  of 
his  toil.  The  second  class  of  laws  is  made  up  of  those  which  have  for 
their  end  to  determine  the  general  conditions  of  society  ;  one  will  gen- 
erally recognize  them  easily  by  the  circumstance  that  within  the  borders 
of  a  country  they  interest  all  persons  equally,  whatever  their  condition, 
because  the  interest  of  each  one  in  having  them  observed  is  the  same 
as  the  interest  all  have  in  the  maintenance  of  the  pohtical  body  based 
upon  them.  .  .  . 

Laws  for  individual  protection  should  be  extraterritorial.  This  is  in 
fact  implicitly  included  in  the  very  idea  of  protection.  For  protection 
to  be  efficacious  it  must  be  complete,  or,  to  return  to  familiar  tei'ms, 
continuous.  It  should  be  continuous  in  time  and  space  ;  suffer  no 
interruption,  for  one  moment  of  interruption  always  compromises,  and 
may  suffice  to  ruin  the  effect  of  long  continued  protection.  It  must  be 
continuous  in  space,   by  which  we  understand  that  the  person  should 


SECT.  1.]  GENERAL    I'RIXCIPLES.  t 

be  protected  eveiTwhere;  and  if,  as  often  happens,  he  owns  goods  in 
several  countries,  thus  subjected  in  fact  to  several  different  sovereign- 
ties, the  law  which  protects  him  should  extend  to  all  his  interests  in 
spite  of  differences  in  the  laws  which  complicate  matters.  All  pro- 
tection is  armor,  which  does  not  fulfil  its  ofHce  unless  it  is  without 
flaw.  .  .  . 

Laws  for  the  security'  of  society  include  all  provisions  deemed  by  the 
legislature  necessary  to  the  existence  of  the  State,  and  to  the  perform- 
ance of  its  various  functions.  It  is  of  the  first  importance  that  within 
a  countr}-  all  wills  without  exception,  including  both  natives  and  for- 
eigners, should  yiehl  obedience  to  laws  for  the  security  of  societv. 
These  laws  are  imposed  on  citizens  only  because  they  are  absolutely 
requisite  for  the  interest  of  society;  those  sacrifices  of  interest  re- 
quired of  citizens  may  all  the  more  be  required  of  foreigners,  mere 
guests.  .   .  . 

Does  a  law  have  in  view  individual  interests  or  the  interests  of 
society?  Supposing  it  to  be  applied,  is  it  the  individual  to  whom  it  is 
applied  who  will  be  benefited,  or  is  it  society-  as  a  whole?  .  .  .  One 
may  ask  (which  amounts  to  the  same  thing)  whether  an  individual  or 
tlie  body  politic  would  suffer  loss  by  its  repeal  or  non-enforcement.  .  .  . 

A  third  method  may  be  usefully  employed  in  the  most  embarrassing 
cases.  When  a  law  has  been  made  for  the  purpose  of  the  security  of 
society,  all  citizens  profit  equall}^  every  time  it  is  applied  ;  if  it  has 
been  made  for  the  protection  of  individuals,  those  benefit  by  it  directly 
who  enjoy  the  rights  it  creates,  and  the  common  good  is  only  an  in- 
direct and  minor  consequence  of  the  good  of  those  individuals.  Let  us 
consider  together  two  doctrines,  the  right  and  the  lack  of  right,  respec- 
tively, to  establish  paternity.  They  seem  equally  to  concern  the  State 
and  individuals.  The  law  which  authorizes  the  establishment  of  pater- 
nity may  seem  to  be  a  law  for  the  security  of  society,  for  it  facilitates 
the  natural  classification  of  individuals  ;  but  it  is  easy  to  see  that  society 
derives  advantage  from  its  provisions  only  as  a  result  of  the  fortunate 
effect  which  its  application  has  upon  the  condition  of  the  parties.  To 
the  legitimate  child  it  is  a  matter  of  entire  indifference.  On  the  other 
iiand,  the  law  which  forl)ids  it  has  evidently  been  passed  not  out  of 
favor  to  the  seducer,  but  bj'  reason  of  a  quite  legitimate  fear  of  the 
scandal  which  such  suits  cause.  No  one  can  claim  an  individual  in- 
terest in  the  application  of  this  law,  but  all  the  members  of  society  have 
an  equal  interest  in  its  being  observed  ;  the  interest  is  entirely  political, 
and  the  rule  should  be  regarded  as  territorial. 


MALE    V.    ROBERTS.  [CHAP.  VI. 


SECTION   II. 

CAPACITY. 


MALE  V.  ROBERTS. 
Nisi  Prius,  in  the  Common  Pleas.  1800. 

[Reported  3  'Espinasse,  163.] 

Assumpsit  for  money  paid,  laid  out,  and  expended,  to  the  use  of  the 
defendant ;  money  lent  and  advanced,  with  the  other  common  money 
counts. 

Plea  of  the  general  issue. 

The  case,  as  opened  h}-  the  plaintiff's  counsel,  was,  that  the  plaintiff 
and  the  defendant  were  performers  at  the  Royal  Circus.  While  the 
company  were  performing  at  Edinburgh,  in  iScolland,  the  defendant 
had  become  indebted  to  one  Cockburn,  for  liquors  of  different  sorts, 
with  which  Cockburn  had  furnished  him  ;  not  having  discharged  the 
debt,  and  it  being  suspected  that  the  defendant  was  about  to  leave 
Scotland,  Cockburn  arrested  him,  by  what  is  there  termed  a  Writ  of 
Fuge,  the  object  of  which  is  to  prevent  the  debtor  from  absconding. 

The  defendant  being  then  unable  to  pay  the  money,  the  plaintiff  paid 
it  for  him  ;  and  he  was  liberated.  The  present  action  was  brought  to 
recover  the  money  so  paid,  as  money  paid  to  his  use. 

The  defence  relied  upon  was,  that  the  defendant  was  an  infant  when 
the  money  was  so  advanced. 

Lord  Eldox.  It  appears  from  the  evidence  in  this  cause,  that  the 
cause  of  action  arose  in  Scotland  ;  the  contract  must  be  therefore 
governed  by  the  laws  of  that  country  where  the  contract  arises. 
Would  infancy  be  a  good  defence  by  the  law  of  Scotland,  had  the 
action  been  commenced  there? 

Best,  Sergeant,  for  the  defendant,  contended,  that  the  contract  was 
to  be  governed  by  the  laws  of  England  ;  in  which  case,  the  plaintiff 
could  recover  for  necessaries  only.  That  at  all  events  it  should  not 
be  presumed  that  the  laws  were  different;  and  as  it  appeared  that 
the  debt  did  not  accrue  for  necessaries,  the  plaintiff  could  neither 
recover  on  the  counts  for  money  paid,  or  for  money  lent  to  an 
infant. 

LoKD  Eldon.  What  the  law  of  Scotland  is  with  respect  to  the  right 
of  recovering  against  an  infant  for  necessaries,  I  cannot  saj' ;  but  if 
the  law  of  Scotland  is.  that  such  a  contract  as  the  present  could  not  be 
enforced  against  an  infant,  that  should  have  been  given  in  evidence  ; 
and  I  hold  myself  not  warranted  in  saying  that  such  a  contract  is  void 
by  the  law  of  Scotland,  because  it  is  void  bv  the  law  of  England.     The 


SECT.  II.]  COOPER    v.    COOPER.  9 

law  of  the  country  where  the  contract  arose,  must  govern  the  contract ; 
and  what  that  U\w  is,  should  be  given  in  evidence  to  me  as  a  fact.  No 
such  evidence  has  been  given  ;  and  I  cannot  take  the  fact  of  what  that 
law  is,  without  evidence. 

The  plaintiff  failed  in  proving  his  case,  and  was  nonsuited.^ 


COOPER  V.  COOPER. 

House  of  Lords  (Scotch  Appeal).    1888. 

[Reported  13  Appeal  Cases,  88.] 

Lord  Halsbury,  L.  C.'^  My  Lords,  in  this  case  the  appellant,  the 
widow  of  a  domiciled  Scotchman,  seeks  to  set  aside  an  antenuptial 
contract  executed  by  her  on  the  day  of  her  marriage. 

A  question  has  been  raised  whether  the  contract  was  not  in  fact 
executed  after  the  celebration  of  the  marriage  ;  but,  without  minutely 
considering  the  evidence,  I  am  satisfied  with  the  conclusion  of  the  Lord 
Ordinary,  that  the  contract  was  executed  before  the  marriage,  a  con- 
clusion which,  indeed,  is  but  feebly  contested  on  the  other  side. 

A  Scottish  widow  is  entitled  to  her  Jus  relictm  and  to  her  terce, 
unless  they  have  been  discharged  ;  and  the  appellant  seeks  to  remove 
t  e  bar  to  these  rights  by  setting  aside  the  contract  in  question  which, 
if  unimpeached,  discharges  these  rights. 

My  Lords,  I  think  there  has  been  some  slight  confusion  between  the 
question  what  forum  can  decide  the  controversy  between  the  parties 
and  what  law  that  forum  should  administer  in  deciding  it.  Now  it  is 
admitted  that  the  app^  Uant  was  a  domiciled  Irishwoman  at  the  time  she 
executed  the  instrument  in  question.  It  is  admitted  she  was  a  minor ; 
and  apart  altogether  from  the  remedy  peculiar  to  Scottish  jurisprudence 
of  setting  aside  a  contract  which  operates  to  the  enorm  lesion  of  a 
minor,  a  question  t(  be  determined  in  a  great  measure  by  the  position 
of  the  parties  and  the  pr  I  ions  of  the  contract  itself,  the  first  question 
arises  here  whether  a  domicilec'  Irioh\,oman  could  bind  herself  at  all, 
while  a  minor,  by  a  contract  executed  in  Ireland. 

There  can  be  no  doubt  as  to  what  would  be  the  rule  of  English  law 
in  this  respect.  The  line  of  cases  which  were  brought  to  your  Lord- 
ships' attention  upon  the  subject  of  provisions  whereby  the  common- 
law  rio-ht  of  dower  was  extinguished  seem  to  me  beside  any  question  in 
this  case.  The  statute  created  the  power  of  extinguishing  the  right  to 
dower,  and  Courts  of  Equity  have  from  time  to  time  considered  and 

1  Ace.  U.  S.  V.  Garlinghonse,  4  lien.  194  (semhie) ;  Appeal  of  Huey,  1  Grant  Cas. 
51.  See  Thompson  v.  Ketchani,  8  Johii.s.  190;  where  it  was  assumed  that  tlie  law  of 
the  place  of  contractiuK  f^ovoriicil,  l)ut  in  the  absence  of  evidence  that  defendant  was 
by  that  law  incapable  the  jjlaintiff  reccnered.  —  Eu. 

■^  Parts  of  the  opinions  only  are  given.—  Ed. 


10  COOPEK    V.    COOPER.  [CHAP.  YI. 

acted  upon  their  view  how  far  the  provision  for  the  wife  has  compUed 
with  the  conditions  of  tlie  statute  ;  but  sucli  cases  have  no  relation  to 
the  question  of  a  minor's  capacity  by  his  or  her  act  to  part  with  rights 
with  which  the  law  would  otherwise  invest  them.  None  of  these  cases 
relate  to  the  question  of  incapacity  to  contract  by  reason  of  minority, 
and  the  capacity  to  contract  is  regulated  by  the  law  of  domicil.  Story 
has  with  his  usual  precision  laid  down  the  rule  (Conflict  of  Laws,  §  64) 
that  if  a  person  i  under  an  incapacity  to  do  any  act  by  the  law  of  his 
domicil,  the  act  when  done  there  will  be  governed  by  the  same  law 
wherever  its  validity  may  come  into  contestation  with  an\-  other 
country  :  quando  lex  in  personam  dirigitnr  respiciendum  est  ad  leges 
illius  civitatis  quse  personam  habet  subjectam. 

There  is  an  unusual  concurrence  in  this  view  amongst  the  writers  on 
international  law :  qua  setate  minor  contrahere  possit  et  ejusmodi 
respicere  oportet  ad  legem,  cujusque  domicilii :  Burgundus,  Tract  2, 
n.  6.  C'est  ainsi  que  la  majorite  et  la  minorite  du  domicile  ont  lieu  par- 
tout  meme  pour  les  biens  situes  ailleurs  :  1  Boullenois,  Princip.  Gen.  6. 
Quotiescunque  de  habilitate  aut  de  inhabilitate  personarum  qua^ratur, 
toties  domicilii  leges  et  statuta  spectanda :  D'Argentre.  So  also  J. 
Voet :  Quoties  iu  quaestione,  an  quis  minor  vel  majorennis  sit,  obtinuit, 
id  dijudicandum  esse  ex  lege  domicilii;  sit  ut  in  loco  domicilii  minor- 
ennis,  ubique  terrarum  pro  tali  habendus  sit,  et  contra. 

It  is  said  that  the  familiar  exception  of  the  place  where  the  contract 
is  to  be  performed  prevents  the  application  of  the  general  rule,  and 
that  as  both  parties  contemplated  a  Scottish  mariied  life,  g,nd  as  a  con- 
sequence a  Scottish  domicil,  the  principle  I  have  spoken  of  does  not 
regulate  the  contract  relations  of  these  two  persons.  I  think  two 
answers  may  be  given  to  this  contention.  In  the  first  place,  I  think  it 
is  a  misapplication  of  the  principle  upon  which  the  exception  is  founded. 
Here  there  is  no  contractual  obligation  to  make  Scotland  the  domicil, 
nor  is  there  any  part  of  the  contract  which  could  not  and  ought  not  to 
receive  complete  fulfilment  even  if  (contrary  to  what  I  admit  was  the 
contemplation  of  both  the  parties)  the  place  of  married  life  should 
remain  in  Ireland  as  if  they  had  emigrated  altogether  and  gone  to  some 
other  countr}'. 

But  anotlier  and  a  more  overwhelming  answer  is  to  be  found  in  this, 
that  the  argument  assumes  a  bunliug  contract,  and  if  one  of  the  parties 
was  under  incapacity  the  whole  foundation  of  the  argument  fails.  .  .  . 

Lord  Watsox.  .  .  .  Whether  the  capacity  of  a  minor  to  bind  himself 
by  personal  contract  ought  to  be  determined  by  the  law  of  his  domicil, 
or  by  the  lex  loci  contractus,  has  been  a  fertile  subject  of  controversy. 
In  the  present  case  it  is  unnecessary  to  decide  the  point,  because  Ire- 
land was  the  country  of  the  appellant's  domicil,  and  also  the  place 
where  the  contract  was  made.  It  was  argued,  however,  for  the  re- 
spondents, that  the  appellant's  objection  to  the  contract,  although  it 
rests  upon  her  alleged  incapacity  to  give  consent,  must  be  decided  by 
the  law   of  Scotland,   as  the  lex  loci  solutionis.     I  am   by  no   means 


SECT.  II.]  MILLIKEX    l\    PRATT.  11 

satisfied  that  Scotland  was.  in  the  proper  sense  of  the  phrase,  the  place 
of  performance  of  the  contract.  The  spouses  no  doubt  intended  to 
reside  in  Scotland,  but  they  must  also  have  intended  that  the  contract 
sliould  remain  in  force  and  be  performed  in  any  other  country  where 
they  might,  from  choice  or  necessity,  take  up  their  abode.  Apart  from 
that  consideration,  and  assuming  Scotland  to  have  been,  in  the  strictest 
sense  of  the  term,  the  locus  solutionis,  I  think  the  argument  of  the 
respondents  is  untenable.  The  principle  of  international  private  law, 
which  makes,  in  certain  cases,  the  law  of  the  place  where  it  is  to  be 
performed  the  legal  test  of  the  validity  of  a  contract,  rests,  in  the  first 
place,  upon  the  assumption  that  the  parties  were,  at  the  time  when 
they  contracted,  both  capable  of  giving  an  effectual  consent ;  and,  in 
tlie  second  place,  upon  an  inference  derived  from  the  terms  of  the 
document,  or  from  the  circumstances  of  the  case,  that  the}'  mutually 
agreed  to  be  bound  by  the  lex  loci  solutionis  in  all  questions  touching 
its  validity.  That  principle  can,  in  my  opinion,  have  no  application  to 
a  case  in  which,  at  tlie  time  when  they  professed  to  contract,  one  of  the 
parties  was,  according  to  the  law  of  that  party's  domicil  and  also  of 
the  place  of  contracting,  incapable  of  giving  consent.  .  .  . 

Lord  Macnaghten.  ...  It  has  been  doubted  whether  the  personal 
competency  or  incompetency  of  an  individual  to  contract  depends  on 
tlie  law  of  the  place  where  the  contract  is  made  or  on  the  law  of  the 
j)lace  where  the  contracting  party  is  domiciled.  Perhaps  in  this 
country  the  question  is  not  finall}-  settled,  though  the  preponderance 
of  opinion  here  as  well  as  abroad  seems  to  be  in  favor  of  the  law  of 
tlie  domicil.  It  may  be  that  all  cases  are  not  to  be  governed  by 
one  and  the  same  rule.  But  when  the  contract  is  made  in  the  place 
where  the  person  whose  capacity  is  in  question  is  domiciled  there  can 
be  no  room  for  dis[)ute.  It  is  difficult  to  suppose  that  Mrs.  Cooper 
could  confer  capacity  on  herself  by  contemplating  a  different  countr}' 
as  the  place  where  the  contract  was  to  be  fulfilled,  if  that  be  the  proper 
expression,  or  b\^  contracting  in  view  of  an  alteration  of  personal  status 
which  would  bring  with  it  a  change  of  domicil.  .  .  . 

Appeal  alloiced.^ 


MILLIKEN   V.   TRATT. 
Supreme  Jtimcial  Coukt  of  ]\Iassachi:setts.     1878. 
[Reported  12.')  .]f(tss<ichus(tts,  .374.] 

Contract  to  recover  $i)0()  and  interest  from  January  G,  1872.  Writ 
dated  June  30,  187'>.  The  case  was  submitted  to  the  Superior  Court 
on  agreed  facts,  in  substance  as  follows  : 

The  plaintiffs  are  partners  doing  business  in   Portland,  Maine,  under 

1  See  In  re  Cooke's  Tru.sts,  5G  L.  J.  di.  G;j7.  —  Ed. 


12  MILLIKEN    V.    PRATT.  [CHAP.  VI 

the  firm  name  of  Deering,  Milliken  &  Co.  The  defendant  is,  and  has 
been  since  1850,  the  wife  of  Daniel  Pratt,  and  both  have  always 
resided  in  Massachusetts.  In  1870,  Daniel,  who  was  then  doing  busi- 
ness in  Massachusetts,  applied  to  the  plaintiffs  at  Portland  for  credit, 
and  the\-  required  of  him,  as  a  condition  of  granting  the  same,  a  guar- 
anty from  the  defendant  to  the  amount  of  five  hundred  dollars,  and 
accordingly  he  procured  from  his  wife  the  following  instrument : 

^'  Portland,  January  29,  1870.  In  consideration  of  one  dollar  paid 
by  Deering,  Milliken  &  Co.,  receipt  of  which  is  hereby  acknowledged,  I 
guarantee  the  payment  to  them  by  Daniel  Pratt  of  the  sum  of  five 
hundred  dollars,  from  time  to  time  as  he  may  want  —  this  to  be  a  con- 
tinuing guaranty.     Sarah  A.  Pratt." 

This  instrument  was  executed  b}'  the  defendant  two  or  three  days 
after  its  date,  at  her  home  in  Massachusetts,  and  there  delivered  b}' 
her  to  her  husband,  who  sent  it  by  mail  from  Massachusetts  to  the 
plaintiffs  in  Portland  ;  and  the  plaintiffs  received  it  from  tlie  post- 
office  in  Portland  early  in  February,  1870. 

The  plaintiffs  subsequently  sold  and  delivered  goods  to  Daniel  from 
time  to  time  until  October  7,  1871,  and  charged  the  same  to  him,  and, 
if  competent,  it  may  be  taken  to  be  true,  that  in  so  doing  they  relied 
upon  the  guaranty.  Between  February,  1870,  and  September  1,  1871, 
they  sold  and  delivered  goods  to  him  on  credit  to  an  amount  largely 
exceeding  $500,  which  were  fully  settled  and  paid  for  by  him.  This 
action  is  brought  for  goods  sold  from  September  1,  1871,  to  October  7, 
1871,  inclusive,  amounting  to  $860.12,  upon  which  he  paid  $300,  leav- 
ing a  balance  due  of  $560.12.  The  one  dollar  mentioned  in  the  guar- 
anty was  not  paid,  and  the  only  consideration  moving  to  the  defendant 
therefor  was  the  giving  of  credit  by  the  plaintifl's  to  her  husband. 
Some  of  the  goods  were  selected  personally  by  Daniel  at  the  plaintiffs' 
store  in  Portland,  others  were  ordered  by  letters  mailed  b\-  Daniel  from 
Massachusetts  to  the  plaintiffs  at  Portland,  and  all  were  sent  by  the 
plaintiffs  by  express  from  Portland  to  Daniel  in  Massachusetts,  who 
paid  all  express  charges.     The  parties  were  cognizant  of  the  facts. 

By  a  statute  of  Maine,  duly  enacted  and  approved  in  1866,  it  is 
enacted  that  ''  the  contracts  of  any  married  woman,  made  for  any  law- 
ful purpose,  shall  be  valid  and  binding,  and  may  be  enforced  in  the 
same  manner  as  if  she  were  sole."  The  statutes  and  the  decisions  of 
the  court  of  Maine  may  be  referred  to. 

Payment  was  duly  demanded  of  the  defendant  before  the  date  of  the 
writ,  and  was  refused  b}'  her. 

The  Superior  Court  ordered  judgment  for  the  defendant ;  and  the 
plaintiffs  appealed  to  this  court. 

Gray,  C.  J.  The  general  rule  is  that  the  validity  of  a  contract  is  to 
be  determined  by  the  law  of  the  State  in  which  it  is  made  ;  if  it  is  valid 
there,  it  is  deemed  valid  everywhere,  and  will  sustain  an  action  in  the 
courts  of  a  State  whose  laws  do  not  permit  such  a  contract.  Scudder 
r.  Union  National  Bank,  91   U.   S.  406.      Even  a  contract  expressly 


SECT.  II  ]  MILLIKEX    V.    PRATT.  13 

prohibited  by  the  statutes  of  the  State  in  which  the  suit  is  brought .  if 
not  in  itself  immoral,  is  not  necessaril}'  nor  usually  deemed  so  invalid 
that  the  comity  of  the  State,  as  administered  by  its  courts,  will  refuse 
to  entertain  an  action  on  such  a  contract  made  by  one  of  its  own 
citizens  abroad  in  a  State  the  laws  of  which  permit  it.  Greenwood  c. 
Curtis,  6  Mass.  358  ;  M'Intyre  v.  Parks,  3  Met.  207. 

If  the  contract  is  completed  in  another  State,  it  makes  no  difference 
in  principle  whether  the  citizen  of  this  State  goes  in  person,  or  sends 
an  agent,  or  writes  a  letter,  across  the  boundary  line  between  the  two 
States.  As  was  said  by  Lord  Lyndhurst,  "  If  I,  residing  in  England, 
send  down  my  agent  to  Scotland,  and  he  makes  contracts  for  me  there, 
it  is  the  same  as  if  I  myself  went  there  and  made  them."  Pattlson  v. 
Mills,  1  Dow  &  CI.  342,  363.  So  if  a  person  residing  in  this  State 
signs  and  transmits,  either  by  a  messenger  or  through  the  post-office, 
to  a  person  in  another  State,  a  written  contract,  which  requires  no 
special  forms  or  solemnities  in  its  execution,  and  no  signature  of  the 
person  to  whom  it  is  addressed,  and  is  assented  to  and  acted  on  by  him 
there,  the  contract  is  made  there,  just  as  if  the  writer  personally  took 
the  executed  contract  into  the  other  State,  or  wrote  and  signed  it 
there  ;  and  it  is  no  objection  to  the  maintenance  of  an  action  thereon 
here,  that  such  a  contract  is  prohibited  by  the  law  of  this  Common- 
wealth.    M'Intyre  v.  Parks,  above  cited. 

The  guaranty,  bearing  date  of  Portland,  in  the  State  of  Maine,  was 
executed  by  the  defendant,  a  married  woman,  having  her  home  in  this 
Commonwealth,  as  collateral  security  for  the  liability  of  her  husband 
for  goods  sold  by  the  ^  laintiffs  to  him,  and  was  sent  by  her  through 
him  by  mail  to  the  plaintiffs  at  Portland.  The  sales  of  the  goods 
ordered  ^y  him  from  the  plaintiffs  at  Portland,  and  there  delivered  b}' 
them  to  him  in  person,  or  to  a  carrier  for  him,  were  made  in  the  State 
of  Maine.  Orcutt  v.  Nelson,  1  Gray,  536  ;  Kline  r.  Baker,  99  Mass. 
253.  The  contract  between  the  defendant  and  the  plaintiffs  was  com- 
plete when  the  guaranty  had  been  received  and  acted  on  by  them  at 
Portland,  and  not  before.  Jordan  v.  Dobbins,  122  Mass.  168.  It 
must  therefore  be  treated  as  made  and  to  be  performed  in  the  State  of 
Maine. 

The  law  of  Maine  authorized  a  married  woman  to  bind  herself  by 
an}-  contract  as  if  she  were  unmarried.  St.  of  Maine  of  18G6,  c.  52; 
Mayo  u.  Hutchinson.  57  IVIaine,  546.  The  law  of  Massachusetts,  as 
then  existing,  did  not  allow  her  to  enter  into  a  contract  as  surety  or 
for  the  accommodation  of  her  husband  or  of  any  third  person.  Gen. 
Sts.  c.  108,  §  3;  Nourse  /?.  Ilenshaw,  12:5  Mass.  90.  Since  the  mak- 
ing of  the  contract  sued  on,  and  before  the  bringing  of  this  action,  the 
law  of  this  Commonwealth  has  been  changed,  so  as  to  enable  married 
women  to  make  such  contracts.  St.  1874,  c.  184  ;  Major  v.  Holmes, 
124  Mass.  108;  Kenworthy  v.  Sawyer,  125  Mass.  28. 

The  question  tlierefore  is.  whether  a  contract  made  in  another  State 
by  a  married  woman  domiciled  here,  wliir-h  a  married  woinati  was  not 


14  MILLIKEN   V.    PRATT.  [CHAP.  VT. 

at  the  time  capable  of  making  under  the  law  of  this  Cora tnon wealth, 
but  was  then  allowed  by  the  law  of  that  State  to  make,  and  which  she 
could  now  lawfully  make  in  this  Commonwealth,  will  sustain  an  action 
against  her  in  our  courts. 

It  has  been  often  stated  by  commentators  that  the  law  of  the 
domicil,  regulating  the  capacity  of  a  person,  accompanies  and  governs 
the  person  everywhere.  But  this  statement,  in  modern  times  at  least, 
is  subject  to  many  qualifications  ;  and  the  opinions  of  foreign  jurists 
upon  the  subject,  the  principal  of  which  are  collected  in  the  treatises  of 
Mr.  Justice  Story  and  of  Dr.  Francis  V/harton  on  the  Conflict  of 
Laws,  are  too  varying  and  contradictory  to  control  the  general  current 
of  the  English  and  American  authorities  in  favor  of  holding  that 
a  contract,  which  by  the  law  of  the  place  is  recognized  as  lawfully 
made  by  a  capable  person,  is  valid  everywhere,  although  the  person 
would  not,  under  the  law  of  his  domicil,  be  deemed  capable  of  mak- 
ing it.^ 

Mr.  Westlake,  who  wrote  in  1858,  after  citing  the  decision  of  Lord 
Eldon,2  well  observed,  "That  there  is  not  more  authority  on  the  sub- 
ject may  be  referred  to  its  not  having  been  questioned;"  and  summed 
up  the  law  of  England  thus  :  "  While  the  English  law  remains  as  it  is, 
it  must,  on  principle,  be  taken  as  exceeding,  in  the  case  of  transac- 
tions having  their  seat  here,  not  only  a  foreign  age  of  majority,  but 
also  all  foreign  determination  of  status  or  capacity,  whether  made 
by  law  or  by  judicial  act,  since  no  difference  can  be  established 
between  the  cases,  nor  does  any  exist  on  the  continent."  "The  va- 
lidity of  a  contract  made  out  of  England,  with  regard  to  the  personal 
capacity  of  the  contractor,  will  be  referred  in  our  courts  to  the  lex 
loci  contractus  ;  that  is,  not  to  its  particular  provisions  on  the  capacity 
of  its  domiciled  subjects,  but  in  this  sense,  that,  if  good  where  made, 
the  contract  will  be  held  good  here,  and  conversely."  Westlake's 
Private  International  Law,  §§  401,  402,  404.3 

In  Greenwood  v.  Curtis,  Chief  Justice  Parsons  said,  "  By  the 
common  law,  upon  principles  of  national  comity,  a  contract  made  in 
a  foreign  place,  and  to  be  there  executed,  if  valid  by  the  laws  of  that 
place,  may  be  a  legitimate  ground  of  action  in  the  courts  of  this  State  ; 
although  such  contract  may  not  be  valid  by  our  laws,  or  even  may  be 

1  The  learned  Chief  Justice  here  examined  the  following  cases:  Ex  parte 
Lewis  1  Ves.  Sen.  298  ;  Morrison's  Case,  Mor.  Diet.  Dec.  4595  ;  Ex  parte  Watkins,  2 
Ves  Sen  470-  In  re  Houston,  1  Russ.  312;  Johnstone  v.  Beattie,  10  CI.  and  F.  42; 
Stuart  ..'  Bute,  9  H.  L.  C.  440 ;  Nugent  v.  Vetzera,  L.  R.  2  Eq.  704  ;  Woodworth  v. 
Spring,  4  All.  321  ;  Male  v.  Roberts,  3  Esp.  163 ;  Thompson  v.  Ketcham,  8  Johns. 
189. —  Ed. 

2  Male  !».  Roberts,  s!/pra.  —  Ed.  t    -d    n  t-     ocq 

3  The  learned  Chief  Justice  here  stated  In  re  Hellmann  s  Will,  L.  K.  2  hq.  36.3 ; 
and  criticised  the  following  Louisiana  cases:  Baldwin  v.  Gray,  16  Mart.  192;  Saul 
V  His  Creditors  17  Mart.  569;  Andrews  v.  His  Creditors,  11  La.  464;  Le  Breton  v. 
Nouchet,  3  Mart.  60 ;  Bavrera  v.  Alpuente,  18  Mart.  69  ;  Gamier  v.  Poydras,  13  La. 
177  :  Gale  v.  Davis.  4  Mart.  645.  —Ed. 


SECT.   II.]  MILLIKEN    V.    PKATT.  15 

prohibited  to  our  citizens;  "  and  tliat  the  Chief  Justice  considered  this 
rule  as  extending  to  questions  of  capacity  is  evident  from  his  subse- 
quent illustration  of  a  marriage  contracted  abroad  between  persons 
prohibited  to  intermarr\-  b}-  the  law  of  their  domicil.  6  Mass.  377- 
379.  The  validit\'  of  such  marriages  (except  in  case  of  polygamy,  or 
of  marriages  incestuous  according  to  the  general  oi)inion  of  Christen- 
dom) has  been  repeatedly  affirmed  in  this  Commonwealth.  Medway  o 
Needham,  16  Mass.  107  ;  Sutton  v.  Warren,  10  Met.  451  ;  Common- 
wealth '•.  Lane,  113  Muss.  458. 

The  recent  decision  in  Sottomayor  r.  De  Barros,  3  P.  D.  1,  b^-  which 
Lords  Justices  James,  Baggallay,  and  Cotton,  without  referring  to  any 
of  the  cases  that  we  have  cited,  and  reversing  the  judgment  of  Sir 
Robert  Phillimore  in  2  P.  D.  81,  held  that  a  marriage  in  England 
between  first  cousins,  Portuguese  subjects,  resident  in  England,  who 
by  the  law  of  Portugal  were  incapable  of  intermarrying  except  by  a 
Papal  dispensation,  was  therefore  null  and  void  in  England,  is  utterly 
opposed  to  our  law ;  and  consequently  the  dictum  of  Lord  Justice 
Cotton,  "  It  is  a  well-recognized  principle  of  law  that  the  questi^  n  of 
personal  capacity  to  enter  into  anv  contract  is  to  be  decided  by  the  law 
of  domicil,"  is  entitled  to  little  weiglit  here. 

It  is  true  that  there  are  reasons  of  j)ublic  jiolicy  for  upholding  the 
validity  of  marriages,  that  are  not  applicable  to  ordinars*  contracts  ; 
but  a  greater  disregard  of  the  lex  domicilii  can  hardlv  be  suggested, 
than  in  the  recognition  of  the  validit}'  of  a  marriage  contracted  in 
another  State,  which  is  not  authorized  b}-  the  law  of  the  domicil,  and 
which  permanently  affects  the  relations  and  the  rights  of  two  citizens 
and  of  others  to  be  born. 

Mr.  Justice  Stor^',  in  his  Commentaries  on  the  Conflict  of  Laws, 
after  elaborate  consideration  of  the  authorities,  arrives  at  the  conclu- 
sion that  "  in  regard  to  questions  of  minority  or  majority,  competency 
or  incompetency  to  marry,  incapacities  incident  to  coverture,  guardian- 
ship, emancipation,  and  other  personal  qualities  and  di.sabilities,  the 
law  of  the  domicil  of  biith,  or  the  law  of  any  other  acquii-ed  and  fixed 
domicil,  is  not  generally  to  govern,  but  the  lex  loci  contractus  ant  actus, 
tlie  law  of  the  place  where  tlie  contract  is  made,  or  the  act  done  ;  "  or 
as  he  elsewhere  sums  it  up,  ''  although  foreign  jurists  generally  hold 
that  the  law  of  the  domicil  ought  to  govern  in  regard  to  the  capacity  of 
persons  to  contract ;  yet  the  common  law  holds  a  different  doctrine, 
namely,  tliat  the  lex  loci  coidractus  is  to  govern."  Story  Contt.  §§  108, 
241.  So  Chancellor  Kent,  although  in  some  passages  of  the  text  of  his 
Commentaries  he  seems  to  incline  to  the  doctrine  of  the  civilians,  yet 
ill  the  notes  afterwards  added  unequivocally  concurs  in  the  conclusion 
of  Mr.  Justice  Story.     2  Kent  Com.  233  note,  458,  459  &,  note. 

In  Pearl  ^'.  Hansborough,  9  Humph.  426,  the  rule  was  carried  so  far 
U-;  t')  iiold  that  where  a  married  woman  domiciled  with  her  luisb;inil  in 
th(!  >>tate  of  Mississippi,  by  the  l:iw  of  wliich  a  purchase  by  a  mar- 
lit'd  woman  was  valid  and  the  property  purchased  went  to  lier  separate 


16  MILLIKEN    V.   PRATT.  [CHAP.  YI. 

use,  bought  personal  property  in  Tennessee,  by  the  law  of  which 
married  women  were  incapable  of  contracting,  the  contract  of  purchase 
was  void  and  could  not  be  enforced  in  Tennessee.  Some  authorities, 
on  the  other  hand,  would  uphold  a  contract  made  by  a  party  capable 
by  the  law  of  his  domicil,  though  incapable  by  the  law  of  the  place  of 
the  contract.  In  re  Hellmann's  AVill,  and  Saul  v.  His  Creditors, 
above  cited.  But  that  alternative  is  not  here  presented.  In  Hill  v. 
Pine  River  Bank,  45  N.  H.  300,  the  contract  was  made  in  the  State  of 
the  woman's  domicil,  so  that  the  question  before  us  did  not  arise  and 
was  not  considered. 

The  principal  reasons  on  which  continental  jurists  have  maintained 
that  personal  laws  of  the  domicil,  affecting  the  status  and  capacity  of 
all  inhabitants  of  a  particular  class,  bind  them  wherever  they  may  go, 
appear  to  have  been  that  each  State  has  the  rightful  power  of  regula- 
ting the  status  and  condition  of  its  subjects,  and,  being  best  acquainted 
with  the  circumstances  of  climate,  race,  character,  manners,  and  cus- 
toms, can  best  judge  at  what  age  young  persons  may  begin  to  act  for 
themselves,  and  whether  and  how  far  married  women  may  act  indepen- 
dently of  their  husbands  :  that  laws  limiting  the  capacity  of  infants  or 
of  married  women  are  intended  for  their  protection,  and  cannot  there- 
fore be  dispensed  with  by  their  agreement ;  that  all  civilized  States 
recognize  the  incapacity  of  infants  and  married  women  ;  and  that  a 
person,  dealing  with  either,  ordinarily  has  notice,  by  the  apparent  age 
or  sex,  that  the  person  is  likely  to  be  of  a  class  whom  the  laws  pro- 
tect, and  is  thus  put  upon  inquiry  how  far,  by  the  law  of  the  domicil  of 
the  person,  the  protection  extends. 

On  the  other  hand,  it  is  only  by  the  comity  of  other  States  that  laws 
can  operate  beyond  the  limit  of  the  State  that  makes  them.  In  the 
great  majority  of  cases,  especially  in  this  country,  where  it  is  so  com- 
mon to  travel,  or  to  transact  business  through  agents,  or  to  correspond 
by  letter,  from  one  State  to  another,  it  is  more  just,  as  well  as  more 
convenient,  to  have  regard  to  the  law  of  the  place  of  the  contract,  as  a 
uniform  rule  operating  on  all  contracts  of  the  same  kind,  and  which  the 
contracting  parties  may  be  presumed  to  have  in  contemplation  when 
making  their  contracts,  than  to  require  them  at  their  peril  to  know  the 
domicil  of  those  with  whom  they  deal,  and  to  ascertain  the  law  of  that 
domicil,  however  remote,  which  in  many  cases  could  not  be  done  with- 
out such  delay  as  would  greatly  cripple  the  power  of  contracting  abroad 
at  all. 

As  the  law  of  another  State  can  neither  operate  nor  be  executed  in 
this  State  by  its  own  force,  but  only  by  the  comity  of  this  State,  its 
operation  and  enforcement  here  may  be  restricted  by  positive  prohibi- 
tion of  statute.  A  State  may  always  by  express  enactment  protect 
itself  from  being  obliged  to  enforce  in  its  courts  contracts  made  abroad 
by  its  citizens,  which  are  not  authorized  by  its  own  laws.  Under  the 
French  code,  for  instance,  which  enacts  that  the  laws  regulating  the 
status  and  capacity  of  persons  shall  bind  French  subjects,  even  when 


SECT.  II.]  FREEMAN'S   APPEAL.  17 

liviu-  iu  a  foreign  country,  a  French  court  cannot  enforce  a  contract 
lnade°  bv  a  Frenchman  abroad,  which  he  is  incapable  ot  makn.g  by  the 
law  of  France.     See  Westlake,  §§  399, -iOO. 

It  is  possible  also  that  in  a  State  where  the  common  law  prevailed  in 
ful  force  b  which  a  married  woman  was  deemed  incapable  of  bmding 
he  sll  by  anv  contract  whatever,  it  might  be  inferred  that  such  an 
uuei  incIpaciV,  lasting  throughout  the  joint  liv^s  of  lu-^and  and 
wife,  must  be  considered  as  so  fixed  by  the  settled  policy  o  the  ^ta  ^ 
for  the  protection  of  its  own  citizens,  that  it  could  not  be  held  b3  the 
courts  of  that  State  to  yield  to  the  law  of  another  State  in  which  she 
mi'i-ht  undertake  to  contract. 

5ut  it  is  not  true  at  the  present  day  that  all  civilized  States  recognize 
the  absolute  incapacity  of  married  women  to  make  contracts.  Ihe 
tendency  of  modern  legislation  is  to  enlarge  their  capacity  in  this 
respect,  and  in  many  States  they  have  nearly  or  quite  the  same  powers 
as  if  unmarried.  In  Massachusetts,  even  at  the  time  of  the  making  of 
the  contract  in  question,  a  married  woman  was  vested  by  statute  with 
a  very  extensive  power  to  carry  on  business  by  herself,  and  to  bind 
herself  by  contracts  with  regard  to  her  own  property,  business,  and 
earnincTs;  and,  before  the  bringing  of  the  present  action,  the  power  had 
•  been  e'xtended  so  as  to  include  the  making  of  all  kinds  of  contracts, 
with  anv  person  but  her  husband,  as  if  she  were  unmarried.  There  is 
therefor;  no  reason  of  public  policy  which  should  prevent  the  main- 
tenance of  this  action.  Judgment  for  the  plaintiffs. 


FREEMAN'S   APPEAL. 

Supreme  Court  of  Errors   of   Connecticut.     1897. 

{Reported  68  Connecticut,  533.] 

Baldwin,  J.  Mrs.  Mitchell,  being  a  citizen  of  Connecticut,  mar- 
ried a  citizen  of  Connecticut  in  1857,  and  they  continued  to  reside  in 
this  State  until  his  death.  Her  marriage  gave  her,  under  the  laws  of 
the  State  then  in  force,  substantially  the  status  which  belonged  to  a 
married  woman  at  common  law.  Her  personal  identity,  from  a  juridi- 
cal point  of  view,  was  merged  in  that  of  her  husband.  Thereafter,  dnr- 
incr  coverture,  she  could  make  no  contract  that  would  be  binding  upon 
he°r,  even  V,y  his  express  authority.  1  Swift's  Dig.  30.  If  she  assumed 
to  make  such  a  contract,  it  was  absolutely  void. 

These  personal  disabilities  the  common  law' imposed  partly  for  the 
protection  of  the  husband,  and  partly  for  that  of  the  wife.    To  preserve 

1  Ace  Bowles  v.  Fiel.l,  7«  Fed.  742;  Hell  v.  I'ackanl.  09  Mo.  10.5;  Wood  .-. 
Wheeler  111  N.  C  231,  K.  S.  E.  418;  Haui.i  v.  Hirchall.  150  I'a.  lf.4,  24  Atl.  f.i'O; 
Ca.se  V.  Dod£?e,  18  R.  I.  001 .  29  Atl.  785.  Coutm,  ( iu6,,ratto  v.  Youn-  4  Dc  (i.  and  S. 
217  ;  Matthew.s  v.  Murchison,  17.  Fed.  700  (.sv>»<W<  )•  S.-o  Hill  v.  Pine  River  Bank,  4o 
N.  I'l.  300.  — K I). 
VOL.  II.  —"2 


IS  freeman's    appeal.  [chap.  VI. 

what  property  rights  remained  to  her,  as  far  as  might  be,  against  his 
creditors,  various  statutes  were  from  time  to  time  enacted,  until  this 
long  ago  became  recognized  as  the  established  policj'  of  the  State. 
Jackson  v.  Hubbard,  36  Conn.  10,  15.  These  statutes  were  mainly 
designed  to  protect  her  against  others.  The  common  law  was  sufficient 
to  protect  her  against  herself,  and  prior  to  1877  it  precluded  her  from 
making  any  contract  as  surety  for  her  husband.  Kilbourn  v.  Brown, 
56  Conn.  149.  A  statute  of  that  year  establishes  a  different  rule  for 
women  married  after  its  enactment,  but  does  not  enlarge  the  rights  of 
those  previousl}'  married.     General  Statutes,  §  2796. 

Whenever  a  peculiar  status  is  assigned  by  law  to  the  members  of 
any  particular  class  of  persons,  affecting  their  general  position  in  or 
^  with  regard  to  the  rest  of  the  community,  no  one  belonging  to  such 
class  can  var}'  by  any  contract  the  rights  and  liabilities  incident  to  this 
status.  Anson's  Principles  of  Contract,  328.  If  he  could,  his  private 
agreements  would  outweigh  the  law  of  the  land.  Jus  publicum  pH- 
vatorum  pactia  rtiutari  i ton  potest. 

Coverture  constitutes  such  a  status,  and  one  of  its  incidents  in  this 
State,  at  the  time  of  Mrs.  Mitchell's  marriage,  was  a  total  disability  to 
contract.  So  far  as  contracts  of  suretyship  for  their  husbands  are  con- 
cerned, the  disability  of  women  married  before  1877  remains  absolute, 
unless  both  husband  and  wife  have  executed  for  public  record  a  written 
contract,  by  which  both  accede  to  the  provisions  of  the  statute  of  that 
year  and  accept  the  rights  which  it  offers  to  them.  General  Statutes, 
§  2798.     No  such  contract  was  ever  executed  by  Mrs.  Mitchell. 

The  claim  in  favor  of  the  First  National  Bank  of  Chicago  which  has 
been  allowed  by  the  commissioners  on  her  estate,  was  founded  on  a 
debt  due  from  a  mercantile  firm  in  Illinois  of  which  her  husband  was  a 
member,  for  which  she  had  assumed  to  make  herself  responsible,  as 
guarantor,  by  a  writing  dated  in  Illinois  but  signed  in  this  State.  The 
creditor  had  agreed,  in  Illinois,  with  the  firm  to  forbear  suit  if  she  and 
they  (as  a  firm  and  individually)  would  become  parties  to  such  a  paper  ; 
and,  after  they  had  signed  it  there,  had  given  it  to  her  husband,  in 
Illinois,  to  take  to  her,  in  this  State,  for  execution.  He  procured  her 
signature  and  then  mailed  the  instrument  to  one  of  his  partners  at 
Chicago,  by  whom  it  was  there  delivered  to  the  bank.  The  agreement 
of  forbearance  had  been  conditioned  on  the  execution  of  the  guaranty 
Vln-  the  firm,  its  individual  members,  and  Mrs.  Mitchell.  It  was  her 
credit  only  that  was  to  give  it  value.  Its  execution  by  the  others  gave 
the  bank  nothing  which  it  did  not  have,  as  fully,  before.  It  did  not 
become  complete  until  it  received  her  signature.  It  did  not  then  be- 
come operative  as  a  security,  until  it  had  been  delivered  to  the  creditor. 

Her  husband  cannot  be  deemed  to  have  acted  in  procuring  Mrs. 
Mitchell's  signature,  as  the  agent  of  the  bank.  No  finding  to  that 
effect  was  made  by  the  trial  court,  and  no  such  agency  is  implied  from 
the  circumstances  of  the  transaction.  He  had  a  direct  interest  in  ob- 
taining the  desired  extension  of  credit.      He  was  a  principal  in  the 


SECT.  II.]  freeman's   APPEAL.  19 

obligation.  He  sent  the  paper,  as  soon  as  it  was  completed,  not  to  the 
bank,  but  to  auotlier  of  the  principals.  If  he  represented  an}'  one  but 
himself,  it  was  his  copartners.  The  delivery  of  the  paper  b^'  his  wife 
to  him,  therefore,  after  her  signature  had  been  attached,  was  not  a 
deliver}-  to  the  bank,  but  simply  purported  to  give  him  authority,  as 
her  agent,  to  make  or  procure  such  a  delivery  at  some  subsequent  time. 

If,  therefore,  the  guaranty,  so  far  as  concerns  her  obligation  upon 
it,  was  ever  delivered,  it  was  delivered,  and  so  first  took  effect,  in  , 
Chicago.  But  its  delivery  there  could  not  effect  her,  unless  it  was 
made  b}-  her  or  by  her  authorized  agent.  Morse,  the  partner  who 
actually  handed  it  to  the  bank,  stood  in  no  better  position  than  her 
husband,  whether  regarded  as  the  servant  of  the  latter,  or  as  a  partner 
with  him.  In  either  case,  the  agency,  by  virtue  of  which  the  deliver}- 
was  made,  was  created,  if  at  all,  in  Connecticut.  / 

But  to  create  an  agency  is  to  enter  into  a  contractual  relation.  Mrs. 
Mitchell  had  no  capacity  to  make  any  contract  whereby  her  legal  posi- 
tion in  respect  to  all  or  any  of  the  other  members  of  the  community 
would  be  varied.  It  would  have  varied  it  in  respect  to  her  husband, 
could  she  have  constituted  him  her  agent  to  put  her,  by  the  deliver}'  of 
an  instrument  of  guaranty,  in  the  situation  of  a  surety  for  his  debt  to 
a  third  party.  He  therefore  derived  no  authority  from  her  to  make 
the  delivery  to  the  bank,  and,  as  to  her,  the  instrument  never  was 
delivered. 

It  is  true,  that  the  guaranty,  if  a  binding  contract,  was  a  contract     y 
made  in  Illinois.     It  might  also  be  assumed,  so  far  as  concerns  the  law 
of  this   case   (although    this  is  a  point   as  to    which   we   express  no 
opinion),  that  it  was  one  to  be  performed  in  Illinois,  and  that  as  to 
the  principals  in  the  transaction  it  was  fully  an  Illinois  contract,  and 
to  be  governed  Ijy  the  law  of  Illinois,  as  respects  any  question  as  to  its 
validity.     By  tliat  law,  a  married  woman  was  free  to  enter  into  such  an 
engagement,  and  to  constitute  an  agent  for  tiiat  |)urpose.     But  the  lex    ^ 
loci  contractus  is  a  rule  of  decision  only  when  there  is  a  contract,  so 
made  as  to  be  subject  to  that  law.     It  is  a  petitio  prmcipii  to  say  that  ^ 
because  the  guaranty  was  delivered  in  Chicago,  it  is  therefore  to  be 
lield  effectual  or  ineffectual,  as  against  Mrs.   Mitchell,  by  the  law   of 
that  place.     The  underlying  question  is,  was  it,  as  to  her,  ever  deliv- 
ered at  all?     It  was  not  so  delivered  unless  delivered  by  her  authority  ; 
and    by   the   laws  of  Connecticut,  where    she    assumed   to  give   such    // 
authority,  she  could   not  give  it.     Cooper  r.  Cooper,  L.  R.  13  App. 
Cases,  88,  99,  100;   Story  on  the  Conflict  of  Laws,   §§  G4,   65,  6G</. 
136;  Dicey  on  the  ConJlict  of  Laws,  Chai).  XVIIL  Rule  123. 

Had  Mrs.  Mitchell  been  within  the  State  of  Illinois,  when  she  signed 
the  guaranty,  it  may  be  that  her  personal  presence  would  have  so  far 
made  her  a  resident  of  that  State  as  to  subject  her  to  its  laws,  in  re- 
spect to  acts  done  within  its  jurisdiction.  But  as  whatever  was  done  in 
Illinois  to  bind  her  to  tiie  bank  was  done  under  an  agency  constituted 
in  Connecticut,  it  is  the  law  of  Connecticut  which  must  determine  as  to 


20  FEEEMAN'S    appeal.  [chap.  VI. 

the  authority  of  the  agent,  and  so  as  to  the  validity  of  the  obligation 
which  he,  as  such,  undertook  to  impose  upon  her  b}^  the  delivery  in 
Chicago  of  the  paper  signed  by  her  in  Bristol. 

The  order  drawn  by  Mi'S.  Mitchell  on  the  executor  of  her  father's 
will,  directing  him  to  pay  over  to  the  bank  whatever  might  otherwise 
be  coming  to  her  as  part  of  the  estate  in  his  hands,  tliough  dated  at 
Chicago,  was  brought  to  her  in  behalf  of  the  bank  in  Connecticut, 
signed  and  given  back  to  the  agent  of  the  bank  in  Connecticut,  ac- 
cepted by  the  executor  in  Connecticut,  and  then  mailed  in  Connecticut 
by  its  agent  to  the  bank  at  Chicago.  The  whole  transaction,  therefore, 
was  completed  here.  The  order  became  operative,  if  at  all,  to  transfer 
her  interest  in  her  father's  estate,  when  the  executor  had  notice  of  it, 
and  agreed  to  comply  with  it  by  handing  his  written  acceptance  to 
the  agent  of  the  bank.  That  Mr.  Mitchell  was  acting  in  that  capacity 
seems  clear  from  the  finding  that  the  bank,  after  the  firm  had  become 
insolvent  and  made  an  assignment  for  the  benefit  of  its  creditors,  pre- 
pared the  paper  and  sent  it  to  him,  to  procure  her  signature  to  it.  No 
assignment  which  she  could  make  would  benefit  the  firm.  If  its  result 
was  to  satisfy  the  claim  of  the  bank,  she  would  be  subrogated  to  its 
place,  and  their  creditors  would  receive  no  greater  dividend.  The 
order,  also,  was  for  the  payment  of  a  share  in  the  estate  of  a  deceased 
citizen  of  Connecticut,  in  course  of  settlement  in  its  courts.  Under 
these  circumstances,  its  validity  must  be  determined  by  the  laws  of 
Connecticut,  and  being  dependent  on  the  contractual  act  of  a  married 
woman,  not  for  the  benefit  of  herself,  her  familj',  or  her  estate,  it  was 
void. 

There  have  been  cases  not  differing  essentially  in  principle  from  that 
at  bar,  in  which  courts,  to  whose  opinions  great  consideration  is  due, 
have  come  to  conclusions  varying  from  those  which  we  have  reached. 
The  leading  one  is  Milliken  v.  Pratt,  125  Mass.  374.  There  a  guaranty 
by  a  married  woman  of  such  debts  as  her  husband  might  thereafter 
contract  was  signed  in  Massachusetts,  delivered  there  by  her  to  him, 
and  by  him  there  mailed  to  the  other  party,  in  Maine.  The  court  held 
that  the  contract  became  complete  when  the  guaranty  was  received  and 
acted  upon  by  the  latter,  and  not  before  ;  and  enforced  it  as  one  made 
and  to  be  performed  in  Maine,  where  married  women  then  had  power 
to  enter  into  such  agreements.  No  reference  was  made  to  the  fact 
(which  may,  perhaps,  have  been  immaterial  under  the  laws  of  Massa- 
chusetts), that  the  delivery  was  made  by  the  husband,  acting  as  the 
agent  of  the  wife,  —  a  fact  which,  in  our  view  under  the  common  law 
of  Connecticut,  is  of  controlling  importance. 

Engagements  which  coverture  prevents  a  woman  from  making  herself, 
she  cannot  make  through  the  interposition  of  an  agent,  whom  she  as- 
sumes to  constitute  as  such  in  the  State  of  her  domicil.  If  this  were 
not  so,  the  law  could  always  be  evaded  by  her  appointment  of  an  attor- 
ney to  act  for  her  in  the  execution  of  contracts.  No  principle  of  comity 
can  require  a  State  to  lend  the  aid  of  its  courts  to  enforce  a  security 


SECT.  II.]  NICHOLS    &   SIIErARD    CO.    V.    MARSHALL. 


21 


which  rests  on  a  trausgression  of  its  own  law  by  one  of  its  own  citizens, 
committed  within  its  own  territory.  Such  was,  in  effect,  the  act  by 
which  Mrs.  Mitchell  undertoolc  to  do  what  she  had  no  legal  capacity  to 
do,  by  making  her  husband  her  agent  to  deliver  the  guaranty  to  the 
bank.  He  had  no  more  power  to  make  it  operative  by  delivery  in 
Chicago  to  one  of  his  creditors  in  Illinois,  than  he  would  have  had  to 
makek  operative  by  delivery  here,  had  it  been  drawn  in  favor  of  one  of 
his  creditors  in  Connecticut.  It  is  not  the  place  of  delivery  that  con- 
trols, but  the  power  of  delivery. 

The  Superior  Court  is  advised  to  disallow  all  and  every  part  of  the 
claim  of  the  First  National  Bank. 

In  this  opinion  the  other  judges  concurred. 


NICHOLS   &   SHEPARD   COMPANY   v.   MARSHALL. 

Supreme  Court  of  Iowa.     1899. 

[Reported  108  Iowa,  518.] 

Deemer,  J.     Defendant  is  a  married  woman  domiciled  in  this  State. 
On  or  about  the  ninth  day  of  July,  1894,  slie  signed  the  note  in  suit, 
in  the  State  of  Indiana,  at  which  place  she  was  temporarily  visiting,  as 
surety  for  Milton  W.  Gregory.     The  note  was  made  payable  at  the 
Indiana  National  Bank  of  Indianapolis.     The  laws  of  Indiana  (section 
6964,  Burns'  Rev.  St.)  provide  that  "a  married  woman  shall  not  enter 
into  any  contract  of  suretyship,  whether  as  indorser,  guarantor,  or  in 
any  other  manner;  and  such  contract,  as  to  her,  shall  be  void."     It  is 
insisted  on  behalf  of  appellant  that  as  defendant  was  domiciled  in  this 
State  at  the  time  she  made  the  note,  her  capacity  to  contract  followed 
her  into  the  State  of  Indiana,  and  validated  her  contract  made  in  that 
commonwealth,  and  that  the  right  of  a   married  woman  to   make    a 
contract  relates  to  her  contractual  capacity,  and,  when  given  by  the 
law  of  the  domicil,  follows  the  person.     Our  statutes  permit  the  mak- 
ing of  contracts  of  suretyship  by  married  women,  and,  if  appellant's 
postulate  be   correct,   it  follows  that   plaintiff  is  entitled  to  recover. 
The  general  rule  seems  to  be,  however,  that  the  validity,  nature,  obli- 
gation, and  interpretation  of  contracts  are  to  be  governed  by  the  le,r 
loci  contractus  aut  actus.     Savary  a.  Savary,  3  Iowa,  272  ;  Boyd  v. 
Ellis,  11  Iowa,  97  ;  Arnold  v.  Potter,  22  Iowa,  194  ;  McDaniel  v.  Rail- 
way Co. ,  24  Iowa,  417;  Burrows  r.  Stryker,  47  Iowa,  477;  Bigelow 
V.  Burnham,  90  Iowa,  300.     The  rule  is  also  well  settled  that  personal 
status  is  to  be  determined  by  the  le.n  domlrilii.     Ross  v.  Ross,  129 
Mass.  243.     Continental  jurists  have  generally  maintained  that  per- 
sonal laws  of  the  domicil,   affecting   the  status  and  capacity  of   all 
inhabitants  of  a  particular  class,  bind  them,  wherever  they  may  go,  and 
that  the   validitv  of   all   contracts,  in   so   far   as  the   capacity-  of   the 


22  NICHOLS    &   SHEPARD   CO.    V.    MARSHALL.  [CHAP.  VL 

parties  to  contract  is  involved,  depends  upon  the  lex  domicilii.     Tims, 
the  Code  of  Napoleon  enacts,  "  The  laws  concerning  the  statns  and 
capacit}-  of  persons  govern  Frenchmen,  even  when  residing  in  a  foreign 
country."     See   also    Story,    Conflict   of  Laws    (8th  ed.),    §§    63-66 ; 
Wharton,  Conflict   of  Laws  (2d  ed.),  §   114.     Some   of  the   English 
cases  have  also  followed  this  rule.     Guepratte  i\  Young,  4  De  Gex  & 
S.  217,  5  Eng.  Ruling  Cas.  848  ;  Sottomayor  v.  De  Barros,  47  Law  J. 
Prob.  23,  5  Eng.  Ruling  Cas.  814.     But  see,  apparently  to  the  con- 
trary, Burrows  v.  Jemino,  2  Strange,  733  ;  Heriz  v.  De  Casa  Riera, 
10  Law  J.  Ch.  47.     We  do  not  think  the  continental  rule  is  applicable 
to  our  situation  and  condition.     A  State  has  the  undoubted  right  to 
define  the  capacity  or  incapacity  of  its  inhabitants,  be  tliey  residents  or 
temporary  visitors ;  and  in  this  countrv,  where  travel  is  so  common, 
and  business  has  so  little  regard  for  State  lines,  it  is  more  just,  as  well 
as  more  convenient,  to  have  regard  to  the  laws  of  the  place  of  contract, 
as  a  uniform  rule  operating  on  all  contracts,  and  which  the  contracting 
parties  may  be  presumed  to  have  had  in  contemplation  when  making 
their  contracts,  than  to  require  them,  at  their  peril,  to  know  the  domi- 
cil  of   those  with  whom  they  deal,  and  to  ascertain  the  law  of  that 
domicil,   however   remote,   which   in    many  cases    could  not  be  done 
without  such  delay  as  would  greatly  cripple  the  power  of  contracting 
abroad  at  all.     Indeed,  it  is  a  rule  of  almost  universal  application  that 
the  law  of  the  State  where  the  conti-act  is  made  and  where  it  is  to  be 
performed  enters  into,  and  becomes  a  part  of  that  contract,  to  the  same 
extent  and   with  the  same  etTect  as  if  written  into  the  contract   at 
length.     Each  State  must  prescribe  for  itself  who  of  its  residents  have 
capacity  to  contract,  and  what  changes  shall  be  made,  if  any,  in  the 
disabilities  imposed  by  the  common  law.     Thus,  in  Thompson  v.  Ket- 
chum,  8  Johns.  192,  the  note  was  made  in  Jamaica.     The  defence  was 
infancy,  according  to  the  laws  of  New  York.     It  was  determined  that 
the  transaction  was  subject  to  the  laws  of  the  place  of  contract,  and 
that  infancy  was  a  defence,  or  not,  according  to  the  laws  of  Jamaica. 
Mr.  Justice  Story,  in  his  commentaries  on    Conflict   of  Laws,  says  : 
'•  In  regard  to  questions  of  minority  or  majority,  competency  or  incom- 
petency   to    marry,  incapacities    incident    to    coverture,  guardianship, 
emancipation,  and  other  personal  qualities  and  disabilities,  the  law  of 
the  domicil  of  birth,  or  the  law  of  any  other  acquired  and  fixed  domi- 
cil, is  not  generally  to  govern,  but  the  lex  loci  contractus  aut  actus, 
where   the    contract   is  made   or   the    act   done."     Story,  Conflict  of 
Laws,  §§   103,  241.     See,  also,   2  Kent  Commentaries,  233,  note;    2 
Kent  Commentaries,  458  ;  2  Kent  Commentaries,  459,  note.     It  will 
be  observed  that  Chancellor  Kent,  in  some  passages  of  his  text,  seems 
to  incline  to  the  civilian  doctrine,  yet  the  notes  clearly  indicate  that  he 
concurs  with  Justice  Story.     See  further,  on  this  subject,  Story,  Con- 
flict  of  Laws    (4th  ed),  §§   101,  102.     The   case   of   Pearl    v.  Hans- 
borough,  9  Humph.  426,  is  almost  exactly  in  point.     In  that  case  a 
married  woman,  domiciled  with  her  husband  in  the  State  of  Mississippi, 


SECT.  II.]  SWANK    i:    HUFNAGLE.  23 

by  the  law  of  which  a  purchase  by  a  married  woman  was  valid,  and 
the  property  purchased  went  to  her  separate  use,  bought  personal 
property  in  Tennessee,  by  the  law  of  which  married  women  were  inca- 
pable of  contracting.  The  contract  was  held  void  and  unenforceable 
in  Tennessee.  See,  also,  Male  v.  Roberts,  3  Esp.  163  ;  Milliken  v. 
Pratt,  125  Mass.  374;  Carey  r.  Mackey,  82  Me.  516,  17  Am.  St.  500 
(20  Atl.  Rep.  84)  ;  Baum  v.  Birchall,  150  Pa.  St.  164  (24  Atl.  Rep. 
620)  ;  2  Parsons,  Contracts  (8th  ed.),  *574,  note  ;  2  Parsons,  Contracts, 
*575-*578.  Saul  o.  Creditors,  5  Mart.  (x.  s.)  569,  seems  to  be 
opposed  to  this  rule.  But  as  the  case  is  from  Louisiana,  which  State 
follows  the  civil  law,  it  is  not  an  authorit}-.  We  may  safely  affirm, 
with  Chancellor  Kent,  that  while  the  continental  jurists  generally 
adopt  the  law  of  domicil,  supposing  it  to  come  in  conflict  with  the  law 
of  tiie  place  of  contract,  the  English  common  law  adopts  tlie  lex  loci 
contractus.  Lord  Eldon,  in  Male  v.  Roberts,  supra,  said:  "It  ap- 
pears from  tile  evidence  in  this  case  that  the  cause  of  action  arose  in 
Scotland,  and  the  contract  must  be  therefore  governed  by  the  laws  of 
that  countr}',  where  the  contract  arises.  Would  infancy  be  a  good 
defence  b^-  the  laws  of  Scotland,  had  the  action  been  commenced  there  ? 
What  the  law  of  Scotland  is  with  respect  to  the  right  of  recovering 
against  an  infant  for  necessaries,  I  cannot  sa}- ;  but,  if  the  law  of  Scot- 
land is  that  such  a  contract  as  the  present  could  not  be  enforced 
against  an  infant,  that  should  have  been  given  in  evidence,  and  I  hold 
myself  not  warranted  in  saying  that  such  a  contract  is  void  by  the  law 
of  Scotland  because  it  is  void  by  the  law  of  England.  The  law  of  the 
country  where  the  contract  arose  must  govern  the  contract,  and  what 
that  law  is  should  be  given  in  evidence  to  me  as  a  fact.  No  such 
evidence  has  been  given,  and  I  cannot  take  the  fact  of  what  that  law  is 
without  evidence."  It  would  seem,  in  tliis  case,  though  not  distinctly 
stated,  that  both  parties  were  domiciled  in  England.  The  result  of  the 
application  of  these  rules  is  that  the  contract  was  void  where  executed, 
and  will  not  be  enforced  by  the  courts  of  this  State. 

Affirmed. 


SWANK  V.  HUFNAGLE. 
Supreme  Court  of  Indiana.     1887. 

[Reported  1 1 1  Indiana,  453.] 

Elliott,  J.  The  appellant  sued  tiie  a[)p('lIoo,  Melissa  Hufnagle, 
und  her  husband,  upon  a  note  and  mortgage  executed  in  Darke  County, 
Ohio,  on  land  situate  in  this  State.  The  appellee,  Melissa  Ilufuagle, 
answered  that  she  was  a  married  woman,  and  tliat  the  mortgage  wa.s 
executed  by  her  as  the  surety  of  licr  !iii'^l>;iiid.  .•md  assumed  to  convoy 
land  in  this  State  owned  by  her.     'I'lic  ;i|)i)(ll;iiii  ic[)li('(i  that  the  con- 


24  SWANK    V.    HUFNAGLE.  [CHAP.  VI. 

tract  was  made  in  Ohio,  and  that  by  a  statute  of  that  State  a  married 
woman  had  power  to  execute  such  a  mortgage,  but  the  statute  of  Ohio 
is  not  set  forth. 

The  trial  court  did  right  in  adjudging  the  repl\-  bad.  The  validity 
of  the  mortgage  of  real  property  is  to  be  determined  by  the  law  of  the 
place  where  the  property  is  situated.  Mr.  Jones  says :  "A  mortgage 
of  course  takes  effect  by  virtue  of  the  law  of  the  place  where  the  land 
is  situated."  1  Jones,  Mortg.  §  823.  This  is  well  settled  law.  Story, 
Conflict  of  Laws  (8th  ed.),  609  auth.  n.  ;  Bethell  v.  Bethell,  92  Ind. 
318. 

Judge  Story,  in  sections  66  and  102  of  his  work  on  the  Conflict  of 
Laws,  does  not  treat  of  conveyances  or  mortgages  of  land,  but  of  con- 
tracts of  an  entirely  difl'erent  class,  so  that  the  appellant  gets  no 
support  from  what  is  there  laid  down  as  the  law. 

Under  the  act  of  1881  a  mortgage  executed  b}-  a  married  woman  as 
surety  on  land  owned  by  her  in  this  State  is  void. 

There  is  another  reason  for  adjudging  the  reply  bad,  and  that  is  this, 
it  does  not  set  out  the  foreign  statute  on  which  it  professes  to  be  based. 
It  is  well  settled  that  where  a  pleading  is  founded  on  a  foreign  statute 
the  statute  must  be  set  forth.  Wilson  v.  Clark,  11-  Ind.  385;  Men- 
denhall  v.  Gately,  18  Ind.  149;  Kenyon  v.  Smith,  24  Ind.  11  ;  Tyler 
V.  Kent,  52  Ind.  583  ;  Milligan  r.  State,  ex  rel,  86  Ind.  553. 

We  cannot  disturb  the  finding  on  the  evidence. 

Judgment  affirmed. 

On  Petition  for  a  Rehearing. 

Elliott,  J.  In  the  argument  on  the  petition  for  a  rehearing, 
counsel  contend  that  we  were  in  error  in  holding  that  a  mortgage 
executed  by  a  married  woman  in  Ohio  as  suret}-  for  her  husband  can- 
not be  enforced  in  this  State,  and  they  refer  us  to  cases  holding  that 
the  construction  of  a  contract  is  governed  by  the  law  of  the  place 
where  it  was  made.  But  the  argument  is  unavailing,  for  counsel 
mistake  the  point  in  dispute.  The  question  is  not  how  the  contract 
shall  be  construed,  but  had  the  married  woman  capacity-  to  execute  it? 
The  question  is  one  of  capacity,  not  of  construction.  The  trial  court 
was  not  asked  to  construe  a  mortgage,  but  to  enforce  one  which  our 
statute  declares  shall  not  be  enforceable.  The  purpose  of  the  suit  is 
not  to  obtain  a  judicial  interpretation  of  a  contract,  but  to  foreclose  a 
mortgage  which  our  law  declares  a  married  woman  has  no  capacity  to 
execute. 

We  suppose  it  quite  clear  that  if  the  mortgagor  has  no  capacity'  to 
execute  a  deed  or  mortgage,  the  instrument  cannot  be  enforced, 
altliough  the  incapacity  is  established  by  the  law  of  the  place  where 
the  land  is  situated.  If,  for  instance,  a  married  woman  should  ex- 
ecute a  deed  or  mortgage  without  her  husband  joining  witii  her,  it 
could  not  be  enforced  in  a  State  where  the  law  required  her  husband 
to  join.     This  is  so  because  the  question  is  one  of  power,  and  power 


SECT.  II.]  SELL    V.   MILLER.  25 

is  created  or  withheld  by  the  law  of  the  place  where  the  land  lies.  It 
is  hardly  necessary  to  cite  authorities  upon  this  elementary  proposi- 
tion, but  there  is  so  conveniently  at  hand  a  decision  of  the  Supreme 
Court  of  Ohio,  where  the  rule  is  affirmed,  that  we  cite  it.  Brown  v. 
National  Bank,  U  Ohio  St.  269.  In  that  case  it  was  said  :  "  We  are 
not  unmindful  of  the  principle  that  deeds  intended  to  convey  or  en- 
cumber an  interest  in  land  situated  in  one  State,  executed  in  another, 
must  derive  their  vitality  from  the  laws  of  the  former." 

Our  statute  provides  that  the  deeds  of  persons  under  twenty-one 
years  of  age  shall  be  voidable,  and  this  law  would  undoubtedly  entitle 
an  infant  under  that  age  to  avoid  a  deed  to  land  in  this  State  ex- 
ecuted in  Ohio,  and  the  principle  in  such  a  case  is  the  same  as  that 
which  rules  here,  for,  in  both  cases,  the  question  is  one  of  capacity. 
In  discussing  this  question  an  American  author  says:  "But  in  re- 
ference to  contracts  about  the  sale  and  conveyance  of  land  such 
capacity  depends  upon  the  laws  of  the  State  wherein  the  land  is 
situated.  This  is  the  general  ruling  in  America  as  to  the  law  upon 
these  subjects,  in  whatsoever  court  the  question  may  arise,  domestic 
or  foreign.  This  rule  applies  to  questions  of  infanc}',  coverture, 
majority,  and  of  legal  capacity  generally."  Rorer,  Inter-State  Law, 
190  ;  1  Jones,  Mortg.,  §  662  ;  4  Kent  Com.,  star  p.  441. 

Petition  overruled.^ 


SELL  V.   MILLER. 

Supreme  Court  of  Ohio.     1860. 

[Reported  11  Ohio  State,  331.] 

By  the  Court.  Where  a  married  woman  over  eighteen,  but  under 
twenty-one  years  of  age,  has  her  domicil,  and  joins  with  her  husband 
in  the  execution  of  a  mortgage,  within  a  foreign  jurisdiction,  where 
the  age  of  majority  is  fixed  at  twenty-one  years,  upon  real  estate 
situate  in  Ohio,  held  :  That  such  mortgage  is  not  invalid  for  want  of 
capacity  on  her  part  to  contract ;  the  capacity  to  contract,  in  respect 
to  immovables,  being  governed  by  the  law  of  the  situs,  and  not  by  the 
law  of  the  domicil.  Motion  overruled. 

1  Ace.  Post  V.  First  Nat.  Bank,  138  111.  5.59,  28  N.  E.  978  ;  Cochran  r.  Benton,  126 
Ind.  58;  Frier.son  r.  Williams,  57  Miss.  451;  Johnson  r.  Gawtry,  1  Mo.  App.  322; 
Wood  V.  Wheeler,  111  N.  C.  231  ;  Baum  v.  Birchall,  150  I'a.  104,  24  Atl.  620.  Contra, 
Kelly  V.  Davis,  28  La.  Ann.  773.  —  Ed. 


26  WOODWARD   V.    WOODWARD.  [CHAP.  VI. 

In  re  HELLMANN'S    WILL. 

Chancery.     1886. 
[Reported  Law  Reports.  2  Equity,  363.] 

Christian  Hellmann,  being  domiciled  in  England,  by  his  will 
bequeathed  the  sum  of  £250  to  eacli  of  the  two  children  of  Char- 
lotte Helsig.  These  children  were  a  daughter,  aged  eighteen,  and  a 
son,  aged  seventeen,  both  resident  and  domiciled  in  Hamburg. 

According  to  the  law  of  Hamburg,  girls  become  of  age  on  complet- 
ing their  eighteenth  year;  boys,  on  completing  their  twenty-second. 
By  the  same  law  the  father  of  an  infant  is  entitled,  as  guardian,  to 
receive  a  legacy  bequeathed  to  the  infant. 

Under  these  circumstances  the  executors  applied,  under  the  Acts  22 
&  23  Vict.  c.  35,  and  23  &  24  Vict.  c.  38,  for  the  direction  of  the  court 
as  to  the  pa3-ment  of  the  legacies. 

Lord  Romilly,  M.  R.  I  am  of  opinion  that  the  legacy  to  the 
daughter,  who  is  of  age  according  to  the  law  of  Hamburg,  may  be  paid 
to  her  on  her  own  receipt.  The  legacy  to  the  son  may  be  paid  to  liim 
on  his  attaining  full  age  according  to  English  law  or  according  to  the 
law  of  Hamburg,  whichever  first  happens  ;  in  the  meantime  it  must 
be  dealt  with  in  the  usual  way  as  an  infant's  legacy.^ 


WOODWARD   r.    WOODWARD. 

Supreme  Court  of  Tennessee.     1889. 

[Reported  87  Tennessee,  644.] 

FoLKES,  J.  This  is  a  petition  by  Rosa  P.  Woodward,  filed  in  the 
Probate  Court  of  Shelby  County,  against  her  guardian,  Emmet  Wood- 
ward, in  which  she  seeks  to  have  a  settlement  of  his  guardian  accounts, 
and  to  have  the  balance  in  his  hands  found  due  paid  over  to  her. 

She  alleges  her  domicil  and  residence  in  the  State  of  Louisiana,  and 
sets  up  and  exhibits  with  her  petition  certified  copies  of  the  proceed- 
ings had  in  that  State,  whereby  she  has  been  emancipated  from  the 
disabilities  of  infancy,  under  and  in  pursuance  of  the  statute  of  the 
State  authorizing,  in  certain  cases,  the  emancipation  of  persons  who 
have  attained  the  age  of  eighteen.  The  petition  alleges  that,  in  conse- 
quence of  such  decree,  she  is,  under  the  laws  of  the  State  of  Louisiana, 
of  full  age,  and  as  such  entitled  to  demand  and  receive  her  estate. 

1  Ace.  Bonohoe  v.  Donohoe,  19  L.  R.  Ir.  349  ;  13  Clunet,  472  (Austria,  22  Jan. '81). 
And  see  Kohne's  Estate,  1  Pars.  Eq.  Gas.  399. 

In  the  same  way  a  fund  will  be  paid  over  to  a  married  woman  if  by  the  law  of  her 
domicil  she  is  authorized  to  receive  it  independently  of  her  husband.  Ex  parte  Lett, 
7  L.  R.  Ir.  132.  — Ed. 


SECT.  II.]  WOODWARD   V.   WOODWARD.  27 

It  is  shown  that  both  her  parents  are  dead  ;  that  her  father  died  of 
yellow  fever,  intestate,  in  1873,  leaving  several  children,  all  of  whom 
are  now  over  twenty-one  years  of  age  except  petitioner,  and  have 
received  from  their  guardian  their  share  of  their  father's  estate ;  that 
defendant,  Emmet  Woodward,  was  appointed  guardian  for  herself  and 
brothers  and  sisters  b}'  the  Probate  Court  of  Shelb}-  Count}-  shortly 
after  her  father's  death  ;  that  there  is  now  in  his  hands  about  $8,000 
belonging  to  her,  which  he  holds  as  such  guardian  ;  that  shortly  after 
her  father's  death,  by  proceedings  duly  had  in  the  Probate  Court  of 
Shelby  County,  petitioner  was  adoi)ted  by  C.  Dickman,  the  husband  of 
her  maternal  aunt,  under  and  in  pursuance  of  the  statutes  of  Tennessee 
in  such  cases  made  and  provided  ;  that  such  adoption  was  with  the 
consent  and  approval  of  the  defendant,  Emmet  Woodward,  her  regular 
guardian  ;  that  several  years  thereafter  C.  Dickman  removed  from  the 
State  of  Tennessee  to  the  State  of  Louisiana  with  the  view  of  taking 
up  his  permanent  abode  there,  and  has  ever  since  and  still  does  reside 
there,  the  State  of  Louisiana  being  the  State  of  his  domicil ;  that 
petitioner,  after  her  adoption,  became  a  member  of  the  family  of  C. 
Dickman,  her  adoptive  father,  and  did  remove  with  him  and  his  family 
to  the  State  of  Louisiana,  and  has  ever  since  resided  there ;  that 
Louisiana  is  the  State  of  her  domicil,  and  was  at  the  time  of  the 
judicial  proceedings  therein  resulting  in  her  emancipation.  She  alleges 
in  her  petition  that  it  is  her  desire,  and  to  her  interest,  to  have  and 
receive  the  estate  coming  to  her  from  her  said  father  as  aforesaid,  by 
reason  of  the  fact  that  it  is  now  in  the  hands  of  the  guardian,  only 
yielding  her  a  revenue  of  six  per  cent,  charged  with  the  commissions, 
expenses,  and  costs  incident  to  such  guardianship,  while  she  can 
readily  obtain  a  permanent  eight  per  cent  investment  of  her  funds  in 
the  State  of  Louisiana,  where  that  rate  of  interest  is  legal,  freed  from 
costs  and  expenses  of  guardianship.  She  insists  that  the  State  of  Ten- 
nessee will  recognize  her  majority  as  determined  and  fixed  by  judicial 
decree  in  the  State  of  her  domicil,  and  would  recognize  as  valid  anv 
receipt,  discharge,  or  acquittance  that  she  might  execute  to  her  guar- 
dian for  her  estate  now  in  his  hands  ;  and  that  the  Probate  Court  will 
order  and  direct  a  settlement  of  accounts,  and  tlie  paying  over  to  her 
the  balance  foimd  to  be  due,  so  that  the  said  guardian,  and  his  sureties 
on  his  official  bond,  may  be  discharged  from  all  further  liabilitv. 

To  this  petition  the  defendant  interposed  a  demurrer,  upon  the 
ground  that  petitioner  was  still  a  minor  under  twentv-one  years  of  a^j-e ; 
that  the  proceedings  had  in  the  courts  of  Louisiana  would  have  no 
extraterritorial  effect  by  reason  of  tlie  want  of  jurisdiction  in  said 
courts  over  the  estate  of  the  ward  situated  in  Tennessee  ;  that  the  pro- 
ceedings had  in  Louisiana  are  unknown  to  the  laws  of  Tennessee,  and 
opposed  to  the  policy  of  Tennessee  law,  and  contrary  to  the  interests 
of  the  citizens  of  Tennessee,  and  would,  tlierefore,  not  be  recognized  in 
the  courts  of  tliis  Slate;  tiiat  the  said  guardian  is  lawfullv  in  posses- 
sion of  said  funds  under  the  laws  of  this  State,  and  has  been  guilty  of 


28  WOODWARD   V.   WOODWARD.  [CHAP.  VI. 

no  breach  of  duty  in  relation  thereto ;  and  that  said  petitioner,  being 
a  minor,  cannot  maintain  this  action  in  her  own  name. 

The  probate  judge  sustained  the  demurrer,  and  dismissed  the  peti- 
tion.    Petitioner  has  filed  the  record  for  a  writ  of  error  in  this  court. 

There  are  certain  general  principles  which  control  the  disposition  of 
this  case.  They  are,  in  the  main,  well  settled ;  the  difficulty  lies  in 
their  application  to  the  particular  facts  of  the  case  in  hand. 

"  It  is  elementary  that  every  State  has  an  inherent  right  to  determine 
the  status  or  domestic  or  social  condition  of  persons  domiciled  within 
its  territory,  except  in  so  far  as  the  powers  in  this  respect  are  restrained 
by  duties  or  obligations  imposed  upon  them  by  the  Constitution  of  the 
United  States."     Strader  v.  Graham,  10  How.  93. 

Again,  the  civil  status  is  governed  universally  by  one  single  princi- 
ple, —  namely,  that  of  domicil,  — which  is  the  criterion  established  by 
law  for  the  purpose  of  determining  the  civil  status,  for  it  is  on  this 
basis  that  the  personal  rights  of  a  party  —  that  is  to  say,  the  law  which 
determines  his  majority  or  minority,  his  marriage,  succession,  testacy, 
or  intestacy  —  must  depend.     Udny  v.  Udny,  L.  R.  1  H.  L.  Sc.  457. 

It  is  not  seriously  controverted  liy  counsel  for  defendant  that  the 
judicial  decree  under  which  the  disabilities  of  minority  were  removed 
in  Louisiana  had  the  same  effect  as  though,  by  direct  statute,  the  age 
of  majority  had  been  fixed  at  eighteen,  so  far  as  the  status  of  minors 
domiciled  in  that  State  is  concerned.  The  main  contention  in  this 
connection  being  that,  the  domicil  of  origin  of  petitioner  having  been 
in  Tennessee,  petitioner  has  acquired  and  could  acquire  no  domicil  in 
Louisiana  by  reason  of  her  removal  to  that  State  by  her  adoptive 
father. 

Before  considering  the  question  of  removal  and  of  the  right  of  the 
adoptive  father  to  acquire  for  his  adopted  child  a  new  domicil,  or, 
what  is  the  same  thing,  the  right  or  privilege  of  the  adopted  child  to 
acquire  a  new  domicil  with  her  adoptive  father,  let  us  settle,  if  we  can, 
what  would  be  the  proper  disposition  of  the  case  had  the  petitioner 
been  born  and  ever  after  domiciled  in  the  State  of  Louisiana.  In  such 
cases  we  regard  it  as  well  settled  that  under  unquestionable  principles 
of  private  international  law  one  State  will  recognize  and  give  force  and 
effect  in  its  own  tribunals  to  the  legislation  of  another  State,  in  so  far 
as  it  fixes  the  status  and  capacity  of  married  women  and  minors.  This 
is  frequently  spoken  of  as  a  principle  of  comity ;  and  while  it  doubtless 
has  its  origin  in  considerations  of  comity,  it  has  been  so  repeatedly 
and  emphatically  recognized  by  the  courts  of  all  civilized  countries 
that  it  is  now  thoroughly  crystallized  into  rules  and  principles  of  private 
international  law. 

As  is  said  in  Ross  r.  Ross,  129  Mass.  243,  in  the  elaborate  discus- 
sion of  the  subject  by  Chief  Justice  Gray,  "  the  status  or  condition  of 
any  person  with  the  inherent  capacity  of  succession  or  inheritance  is  to 
be  ascertained  by  the  law  of  the  domicil  which  creates  the  status,  at 
least  when  the  status  is  one  which  may  exist  under  the  laws  of  the 


SECT.  II.]  WOODWARD    I'.    WOODWARD.  29 

State  in  which  it  is  called  in  question,  and  when  there  is  nothing  in 
those  laws  to  prohibit  giving  full  effect  to  the  status  and  capacity  in 
the  State  of  the  domicil. 

'•  We  are  not  aware  of  any  case  in  England  or  America  in  which 
change  of  status  in  the  country  of  the  domicil,  with  the  formalities 
prescribed  by  its  laws,  has  not  been  allowed  full  effect  as  to  the  capacity 
thereb}-  created  of  succeeding  to  and  inheriting  property  in  anj-  other 
couutrj-,  the  laws  of  which  hold  a  like  change  of  status  in  a  like  manner, 
with  a  like  effect,  under  like  circumstances." 

Tins  principle  is  illustrated  by  the  decree  made  In  re  Da  Cunha,  1 
Hagg.  Ecc.  R.,  page  237,  where  administration  was  granted  in  Eng- 
land, limited  to  the  receipt  of  the  dividend  of  a  sum  of  English  stock, 
to  a  Portuguese  lady  who,  by  the  laws  of  her  domicil,  was  emancipated 
from  the  disabilities  of  minority,  but  was,  b}'  the  English  law,  still  a 
minor.  It  was  held  that  she  was  entitled  to  receive  and  receipt  for  the 
dividend  on  said  stock  in  England. 

It  is  true,  as  insisted  b}-  counsel  for  defendant,  that  there  is  no 
elaboration  of  decision  and  of  discussion  made  by  the  judges  in  the 
disposition  of  this  case,  but  this  fact  in  no  manner  detracts  from  its 
force  and  effect  as  authority.  It  does  settle  and  determine  that  a 
person  of  full  age  by  the  law  of  her  domicil,  though  a  minor  by  the 
laws  of  England,  is  entitled  to  receive  and  give  a  valid  acquittance  for 
property  to  which  she  is  entitled  in  England  ;  and  such  receipt,  thouo-h 
confined  to  the  dividend  on  the  stock,  is  as  conclusive  of  her  right  to 
act  as  a  major  as  though  she  had  received  the  corpus  of  the  property, 
the  dividend  being  all  that  she  was,  under  the  circumstances,  entitled 
to.  In  Rule  32  of  Dicey,  we  find  it  stated  that  the  capacitv  of  a  person 
for  the  alienation  of  movables  depends,  so  far  as  the  question  of  infancv 
or  majority  is  concerned,  on  the  law  of  that  person's  domicil.^ 

It  is  suggested,  however,  in  response  to  this  case,  that  the  fact  that 
the  property  going  to  the  minor  was  by  the  will  given  to  the  minor  bv 
name,  is  indicative  of  the  purpose  to  have  the  same  paid  over  to  the 
minor,  according  to  the  law  of  the  place  of  her  domicil,  where  her 
majority  was  reached  at  an  earlier  age  than  in  England,  and  that  for 
this  reason  it  should  not  bo  controlling  in  a  case  where  the  propertv 
was  inherited  generally  in  one  State,  where  twenty-one  is  the  lawful 
age,  and  the  full  age  at  an  earlier  period  is  had  by  reason  of  the  domi- 
cil in  another  State. 

We  cannot  appreciate  the  force  of  this  suggestion.  Tlic  court,  in 
disposing  of  the  case,  indicates  in  nowise  th.-it  its  judgment  or  conclu- 
sion was  nifluenced  by  any  such  consideration,  and,  so  far  as  the  case 
goes,  it  is  merely  an  announcement,  and  application  of  the  general 
principles  contended  for  by  petitioner.  Had  any  special  regard  been 
given  to  the  fact  that  property  was  devised  l)y  will,  instead  of  passing 
by  law,  it  would  have  been  more  reasonable  to  iiave  supposed  tiiat  the 

1  The  court  here  examiiioil  In  re  Ilollm.-inii's  Will,  [,.  R.  2  K,|.  ;?f,.T. Yd 


30  WOODWAKD    V.    WOODWARD.  [CHAP.   VK 

testator  intended  it  to  be  paid  over  according  to  the  law  of  his  own 
domicil,  requiring  guardians  to  receive  and  receipt  for  the  fund  devised 
to  minors.  That  the  court  gave  no  attention  to  such  considerations, 
is  shown  by  the  order  made  with  reference  to  the  boy,  in  directing  that 
the  fund  should  be  paid  to  him  when  he  attained  his  majority,  either 
under  the  law  of  England  or  under  the  law  of  his  domicil,  whichever 
first  happened. 

This  court  has  recognized  the  doctrine  contended  for  by  petitioner 
in  the  case  of  Robinson  v.  Queen,  decided  at  Nashville  and  reported 
in  87  Tennessee,  445,  where  it  is  held  that  the  judicial  proceedings, 
under  the  laws  of  the  State  of  Kentucky,  emancipating  married  women 
from  the  disabiUty  of  coverture,  would  be  recognized  and  enforced  in 
this  State  to  the  extent  of  allowing  an  action  to  be  brought  and  main- 
tained in  the  courts  of  this  State  against  such  married  woman,  on  a 
note  made  by  her  in  the  State  of  Kentucky  as  surety  for  her  husband, 
clearly  recognizing  that  her  status  as  a  person  sui  Juris  fixed  by  judi- 
cial proceedings  in  the  State  of  her  domicil,  would  have  full  force  and 
effect  in  this  State. 

To  the  same  effect  is  the  text  in  Wharton's  Conflict  of  Laws,  §  114, 
where  the  learned  author  says  : 

''"A  foreigner  who  is  capable  of  business  at  his  domicil  must  be 
recognized  as  so  capable  by  our  laws,  even  though  if  domiciled  among 
us  he  would  be  incapable." 

A  near  analogy  to  the  present  case,  with  reference  to  the  recognition 
in  one  State  of  the  status  fixed  by  the  law  of  the  domicil  is  to  be 
found  in  the  case  of  children  born  out  of  wedlock,  but  made  legitimate 
afterward  according  to  the  laws  of  their  domicil,  by  the  subsequent 
marriage  of  their  parents.  They  are  deemed  everywhere  legitimate  for 
the  purposes  of  inheritance,  etc.  Andrews  v.  Andrews,  24  Ch.  Div. 
637;  Miller  v.  Miller,  91  N.  Y.  315;  Scott  v.  Ney,  11  La.  Ann.  232. 
This  doctrine  is  generally  subject  to  exception  concerning  real  estate, 
which  is  governed  by  the  lex  rei  sitce. 

The  law  of  divorce  also  furnishes  a  close  analogy.  Thus  a  divorce 
in  a  foreign  jurisdiction  for  a  cause  which  is  not  competent  in  the  State 
of  marriage,  is  recognized  as  valid  in  the  latter  if  the  former  had  juris- 
diction of  the  parties  for  the  purposes  of  the  suit.  Sewall  v.  Sewall, 
122  Mass.  158  ;  Clark  v.  Clark,  8  Cushing,  385  ;  Barber  v.  Root,  10 
Mass.  260. 

In  Stephens  v.  McFarland,  8  Irish  Eq.  Rep.  444,  we  have  a  case 
where  a  minor  was  insolvent  in  Southern  Australia,  by  the  laws  of 
which  a  minor  could  be  so  adjudged  ;  his  assignee  attempted  in  Ireland 
to  obtain  the  real  and  personal  property  that  passed  to  him  under  his 
father's  will.  The  bill  was  demurred  to  and  the  demurrer  overruled, 
the  assignee  being  adjudged  to  have  the  title  of  the  property  coming 
to  the  insolvent  minor. 

The  converse  of  the  present  case  is  found  in  Kohne's  estate,  1  Par- 
sons' Select  Eq.   Cases  (Penn.),   399  ;  the  direct  point  was  that  the 


SECT.  II.]  WOODWARD    V.    WOODWARD.  31 

power  of  attorne}'  of  a  minor,  who  had  not  reached  her  niftjority  bj-  the 
law  of  her  domicil,  would  not  be  recognized  in  Pennsylvania,  although 
by  the  law  of  Pennsylvania  she  was  then  of  full  age.  The  judge 
delivering  the  opinion  said,  among  other  things,  "that  according  to 
our  law,  in  common  with  those  of  the  civilized  world,  questions  of 
minorit}'  and  majorit}',  in  all  controversies  respecting  personal  estate, 
are  to  be  determined  according  to  the  laws  of  the  country  in  which  the 
minor  held  his  actual  domicil,  whether  natural  or  acquired."  See 
Story's  Conflict  of  Laws,   §§  64,   65,  66,  and  69. 

Pothier  states  the  rule  thus:  "The  change  of  domicil  delivers 
persons  from  the  empire  of  the  laAVs  of  the  place  they  have  quitted,  and 
subjects  them  to  those  of  the  new  domicil  they  have  acquired." 

Mr.  Justice  Story,  after  presenting  the  several  views  of  some  of  the 
civil  law  writers  who  discuss  the  subject,  says,  at  section  71  :  "  Boullen- 
ois  himself  does  not  hesitate  to  declare  the  general  principle  to  be 
incontestable,  that  the  law  of  the  actual  domicil  decides  the  state  and 
condition  of  the  person,  so  that  a  person  by  changing  his  domicil 
changes  at  the  same  time  his  condition." 

The  effect  of  the  statute  of  Louisiana,  under  which  the  disabilities 
of  this  minor  were  removed,  has  been  adjudged  b}-  the  highest  court 
of  that  State. 

Thus,  in  36  La.  Ann.  250,  it  is  said  :  "  It  places  the  minor  thus 
freed  on  the  same  plane  with  the  major,  and  invests  him  with  identi- 
cally the  same  rights,  and  subject  to  equal  responsibilities.  In  other 
words,  instead  of  leaving  him  subject  to  the  operation  of  the  general 
law,  and  making  him  wait  until  he  is  twenty-one  years  of  age,  it 
virtually  and  in  eflfect  fixed  and  established  his  majority  at  an  earlier 
period  of  life,  —  that  is,  at  any  time  when  he  shall  have  passed  the  age 
of  eighteen  years."  So  full}'  is  his  majority  established  that  he  is  capa- 
ble of  filling  the  office  of  administrator,  just  as  if  twenty-one  years  of 
age.  12  La.  Ann.  155.  Under  this  legislative  emancipation  the  party's 
disabilities  of  infancy  are  all  removed.  6  Robinson,  429  ;  9  La.  Ann. 
155  ;  36  La.  Ann.  250.  He  is  estopped  by  it,  and  those  dealing  with 
him  need  look  no  further  than  his  free  papers.     36  La.  Ann.  616. 

The  case  of  Galbraith  r.  Buner,  65  Mo.  349,  urged  by  counsel  for 
defendant  as  furnishing  strong  authority  for  their  contention  here,  is 
not,  in  our  opinion,  entitled  to  the  weight  insisted  upon.  The  case  is 
extremely  brief  in  its  discussion,  and  assumes  the  ver}'  point  in  contro- 
versy, without  reference  to  the  various  authorities  bearing  thereon. 

Mr.  Wharton,  in  his  work  on  Conflict  of  Laws,  at  section  114,  says 
of  this  case  that  it  is  "exceptional"  and  "arbitrary."  Moreover,  it 
may  be  distinguished  from  the  case  now  before  us  in  this,  that  the 
proceedings  in  Arkansas,  the  State  of  domicil  of  the  minor,  seem  to 
have  had  for  its  object  the  emancipation  of  the  minor  only  pro  tan  to 
—  that  is  to  sa}',  the  minor's  disal)ilitios  were  removed  to  the  extent  of 
authorizing  him  to  go  into  the  State  of  Missouii  and  there  colkfct  and 
receipt  for  the  particular  fund  in  the  hands  of  his  Missouri  guardian. 


32  d'hervas  v.  bonnak.  [chap.  vi. 

It  was  not  an  out  and  out  removal  of  all  the  disabilities  of  minority, 
but  a  special  commission  authorizing  an  incursion  into  the  State  of 
Missouri  for  the  purpose  of  receiving  and  receipting  for  a  particular 
fund.  The  Arkansas  statute  is  not  before  us,  and  we  only  know  its 
contents  by  the  statement  thereof,  found  in  this  Missouri  case,  from 
which  it  is  apparent  that  it  differs  widely  from  the  broad  and  compre- 
hensive proceedings  in  Louisiana,  whereby  the  petitioner  in  the  case  at 
bar  was  thoroughly  and  entirel}-  emancipated  from  all  disabilities,  and 
her  status  fixed  as  a  major  in  Louisiana,  from  which  she  claims  the 
riglit  to  have  her  status  recognized  in  other  sovereignties. 

So  far  we  have  traveled  a  broad  and  well-defined  road,  from  which 
there  is  no  variableness  nor  shadow  of  turning,  every  step  of  which  is 
marked  by  well  considered  authority  of  the  highest  repute.^ 

Under  the  view  we  take  of  the  law  governing  this  case,  the  petitioner 
has  attained  her  majority  under  the  laws  of  the  State  of  her  domicil, 
and  this  court,  recognizing  the  status  of  capacit}'  as  thus  fixed  by  the 
law  of  her  domicil,  will  declare  her  of  full  age,  so  far  as  her  right  to 
demand  and  receive  from  any  one  having  property  in  their  possession 
belonging  to  her,  to  which  she  would  be  entitled  upon  attaining  full 
age  in  this  State. 

In  other  words,  being  of  full  age  in  Louisiana,  the  State  of  her  domi- 
cil, she  is  of  full  age  in  this  State,  under  the  principles  of  private 
international  law  obtaining  in  such  cases. 

Let  the  judgment  be  reversed,  and  the  case  remanded  for  further 
proceedings. 


D'HERVAS   V.   BONNAR. 
Court  of  Cassation,  France.     1833. 

[Reported  Sirey,  1833,  I.  663.] 

In  1812  Mme.  Willeminot,  a  Frenchwoman,  married  at  Madrid  M. 
d'Hervas,  a  Spaniard,  and  thus  became  a  foreigner.  Soon  after  their 
union,  they  removed  to  France,  and  there  established  themselves  in 
business  and  acquired  real  estate. 

On  Nov.  9,  1820,  Mme.  d'Hervas  became  bound,  jointly  with  her 
husband,  as  debtor  to  M.  Bonnar  for  a  sum  of  100,000  francs,  to 
secure  which  she  mortgaged  to  him  the  estate  of  Beaugez,  belonging 
to  her. 

The  obligation  not  having  been  performed,  M.  Bonnar  brought 
action  against  Mme.  d'Hervas  to  obtain  the  land.  She  however  al- 
leged that  the  obligation  was  void,  on  the  ground  that  by  the  Spanish 
law  a  wife  cannot  bind  herself  jointly  with  her  husband,  nor  give  se- 
curit}'   for  him.     M.  Bonnar  denied  the  application  of  Spanish  law  to 

1  The  court  proceeded  to  discuss  the  question  of  domicil.  —  Ed. 


SECT.  II.]       COURT  THEATRE  OF  HANOVER  V.    G.  33 

an  obligation  contracted  in   France   by  a  Spanish  woman  domiciled 
there,   and  secured  by  goods  situated  in  France. 

The  Tribunal  of  the  Seine,  June  4,  1827,  dismissed  the  action.  On 
appeal,  the  Royal  Court  of  Paris  reversed  the  judgment.^  Appeal  by 
Mme.  d'Hervas,  for  violation  of  the  principles  as  to  statute  personal 
contained  in  Articles  3  and  11  of  the  Civil  Code. 

The  Court.  It  is  not  here  a  question  either  of  the  status  of  Mme. 
d'Hervas,  or  of  any  right  guaranteed  by  a  diplomatic  convention  be- 
tween France  and  Spain,  to  the  citizens  of  one  country  living  in  the 
other  ;  but  of  the  validity  of  an  obligation  assumed  in  France  by  a 
foreigner,  who  there  had  •  a  domicil  and  landed  property.  In  this 
atfair'the  judgment  could  not  have  violated  Art.  11  of  the  Civil  Code, 
since  that  article  secures  to  a  foreigner  in  France  the  enjoyment  of 
the  same  civil  rights  as  are  granted  to  Frenchmen  by  the  treaties  of 
the  foreigner's  nation. 

Though  Art.  3  declares  that  laws  concerning  the  status  and  capacity 
of  persons  govern  Frenchmen  even  while  residing  in  a  foreign  country, 
it  contains  no  similar  or  analogous  provision  in  favor  of  foreigners 
residing  in  France  ;  whence  it  results  that  the  judgment  appealed  from 
could  not  have  violated  this  article. 

By  the  terms  of  the  same  article,  immovables  in  France  owned  by 
foreigners  are  governed  by  French  law  ;  and  in  deciding  that  Mme. 
d'Hervas  was  held  to  execute  an  obligation  which  she  had  contracted 
under  the  authority  of  the  French  laws,  with  a  mortgage  on  her  land 
situated  in  France,  the  judgment  made  a  proper  application  of  the 
French  laws  which  govern  this  obligation.^ 


MANAGER  OF  THE  COURT  THEATRE  OF   HANOVER  v.  G. 

Supreme  Court  at  Celle  (Hanover).     1846. 

[Reported  13  Smffert's  Archh;  102.] 

The  singer  Louise  G.  of  Vienna  on  Nov.  9,  1840,  with  the  assent 
of  her  mother  (her  pretended  guardian),  concluded  an  engagement  with 
the  Manager  of  the  Court  Theatre  of  Hanover.  The  singer  G.  after- 
wards refused  to  carry  out  the  contract,  and  the  Manager  brought  suit. 
The  Austrian  law,  according  to  the  Manager's  contention,  did  not  de- 
prive of  all  effect  the  engagements  of  a  minor  entered  into  witliout  the 
assent  of  her  guardian;  while  according  to  the  law  of  Hanover  such 
engagements  were  null  and  void.  The  question  therefore  arose,  by 
wh'at  law  the  legal  capacity  of  a  party  to  a  contract  must  be  judged. 

1  The  judgment  of  the  Royal  Court,  and  the  arguments  in  the   Cassation,  are 

omitted.  —  Eu. 

2  C'oHfra,  Erambe.rt  ».  Clerdcnt  (Lie!ro,;{l  Dec '79).  I'asi.-.  lUdir.  1880,  2,  122.  —  Ed- 

VOL.  II.  — .3 


34  DE    LIZARDI    V.    CHAIZE.  [cHAP.  VI. 

The  Court.  The  rule  must  always  be,  that  a  court  shall  decide 
according  to  the  law  of  the  land.  The  exception  to  this  rule,  based 
solel}'  on  peculiar  usage,  according  to  which  the  minority  of  a  foreigner 
is  determined  by  the  law  of  his  domicil,  cannot  be  extended  in  the 
decisions  so  as  to  cover  the  legal  consequences  of  such  miuorit}'.  The 
effect  of  the  defendant's  agreement,  attacked  as  the  contract  of  a  minor, 
is  therefore  to  be  determined  by  our  law. 


DE   LIZARDI   V.    CHAIZE. 

Court  of  Cassation,  France.     1861. 

[Reported  Journal  du  Palais,  1862,  427.] 

M.  DE  Lizardi,  a  Mexican,  then  over  twenty-one  years  old,  but  still 
a  minor  b}'  Mexican  law,  bought  of  Chaize,  Rigaud,  Delamarre  and 
Bablin,  in  1853  and  1854,  jewels  to  a  considerable  amount,  and  in 
payment  signed  notes  and  bills  of  exchange.  In  1857,  having  come 
of  age  by  the  law  of  his  country,  M.  de  Lizardi  summoned  M.  Chaize 
and  partners  before  the  Tribunal  of  the  Seine,  to  have  declared  void 
as  made  during  minorit\-  all  the  obligations  he  had  given  them. 

To  this  petition  the  defendants  answered  that  at  the  time  they  dealt 
with  him  M.  de  Lizardi  was  of  age  by  French  law;  that  they  were 
ignorant  of  his  foreign  nationality  ;  that  they  contracted  in  good  faith  ; 
and  that  the  obligations  were  therefore  binding.  They  also  filed  a 
cross-claim  for  the  payment  of  the   amounts  he  owed  them. 

The  tribunal  found  for  the  defendants  upon  the  original  petition, 
and  allowed  the  cross-claim.  On  appeal  to  the  Court  of  Paris  the 
judgment  was  affirmed.^     The  petitioner  appealed. 

The  CoLTiT.  Though  the  statute  personal,  the  application  of  which 
to  French  citizens  residing  in  a  foreign  country  is  assured  by  the 
French  civil  law,  may  .on  the  principle  of  reciprocity  be  invoked  by 
foreigners  residing  in  France,  yet  it  is  proper  in  applying  the  foreign 
statute  to  enforce  restrictions  and  limitations  without  which  there  would 
be  constant  danger  of  error  or  surprise  to  the  prejudice  of  Frencli 
citizens.  Though  on  principle  one  is  bound  to  know  the  capacity  of 
the  person  with  whom  one  enters  into  a  contract,  the  rule  cannot  be 
so  strictly  and  rigorously  applied  with  regard  to  foreigners  contracting 
in  France.  Civil  capacity  may  in  fact  be  easily  verified  in  the  case 
of  transactions  between  French  citizens ;  but  it  is  otherwise  as  to 
transactions  that  take  place  in  France  between  Frenchmen  and  foreign- 
ers. In  such  a  case,  the  Frenchman  cannot  be  held  to  know  the  laws 
of  various  nations,  and  their  provisions  as  to  minority  and  majority 
and  the  extent  of  the  power  of  foreigners  to  make  agreements  within 

^  The  judgments  of  the  lower  courts  and  arjruments  of  counsel  are  omitted.  — Ed. 


SECT.  II.]  FOURGEAUD    V.    SANTO    VENIA.  35 

the  limits  of  their  civil  capacity.  It  is  sufficient  for  the  validity  of  the 
contract  that  the  Frenchman  lias  acted  without  laches  and  negligence 
and  in  good  faith. 

It  is  not  shown  that  the  defendants  knew  the  petitioner's  foreign 
nationality  when  they  dealt  with  him  ;  it  follows  from  the  facts  found 
in  the  lower  court  that  in  making  sales  to  him  in  the  regular  course 
of  business  they  acted  in  entire  good  faith  ;  the  price,  though  large, 
was  not  out  of  proportion  to  Lizardi's  fortune;  these  things  were 
delivered  in  presence  of  his  relatives  and  without  opposition  on  their 
part ;  from  some  of  the  objects  sold  the  petitioner  has  realized  a  profit ; 
nothing  could  lead  the  present  defendants  to  suspect  that  Lizardi, 
though  aged  more  than  twenty-one  years,  was  yet  a  minor  by  the  laws 
of  his  country'. 

These  facts,  recited  in  the  judgment,  sufficiently  justify  the  main- 
tenance of  agreements  undertaken  by  Lizardi  with  the  present  defend- 
ants, and  no  law  was  violated  by  the  judgment. 

Appeal  dismissed.^ 


FOURGEAUD   v.   SANTO  VENT  A. 
CouKT  OF  Paris.     1879. 

[Reported  6  Climet,  488.] 

The  Court.  The  fact  is  clear  that  Joseph,  Count  of  Santo  Venia, 
is  of  Spanish  nationality  ;  and  at  the  time  he  accepted  the  drafts  drawn 
on  him  by  Therese  Bimet  (discounted  by  Fourgeaud,  Simon  Bugnict  & 
Cie.)  he  was  more  than  twenty-one  years  old,  but  a  minor  according 
to  the  Spanish  law,  his  statute  personal,  which  fixes  the  age  of  majority 
at  twenty-five.  The  question  is  whether  the  Count  of  Santo  Venia, 
who  has  accepted  drafts  in  which  he  described  himself  as  domiciled  at 
Paris,  can  set  up  against  honajide  holders  his  foreign  nationality  and 
his  minority  by  the  rule  of  his  national  law  ;  and  whether  these  bona 
fide  holders  were  bound  at  their  peril  to  ascertain  the  real  capacity  of 
the  acceptor. 

Though  the  laws  which  govern  the  status  and  capacity  of  persons  fol- 
low those  persons  wherever  they  go,  whatever  be  their  domicil  of  origin, 
yet  one  must  remember  that  the  application  of  the  foreign  statute  is  sub- 
ject to  restrictions  and  limitations  required  by  the  legitimate  interest 
of  citizens  of  France  who  have  become  creditors  by  regular  legal  bank- 
ing operations.  Fourgeaud,  Simon  Bugniet  e.t  Cie.  did  not  deal  direell}' 
with  the  Count  of  Santo  Venia  ;  they  dealt  only  with  Therese  Bimot, 

1  Ace.  Cnssac  v.  Hartop  (Paris  1883).  10  Clunet,  290.  In  a  similar  case  the  Civil 
Tribunal  of  the  Seine  said  :  "  It  is  a  principle  of  natural  law  and  of  the  juihlic  onlrr 
of  France  that  no  one  shall  enrich  himself  at  tlie  exjtense  of  another;  such  a  rule, 
like  laws  of  police  and  of  safety,  bind,  without  distinction  of  origin  or  nationalitv,  :ill 
who  are  on  French  soil."     14  Clunet,  178.  —  Kd. 


36  A.  V.  c.  [chap.  VI. 

his  creditor.  Tliough  one  may  perliaps  hold  that  Therese  Bimet,  who 
knew  the  Count  of  Santo  Venia,  was  to  blame  for  giving  him  credit  in 
spite  of  certain  facts  which  indicated  his  foreign  nationality,  the  same 
blame  cannot  attach  to  bankers  living  far  from  Paris,  who  acted  on 
information  furnished  them  by  the  holder  of  the  drafts,  and  by  declara- 
tions as  to  domicil  upon  the  drafts,  and  were  therefore  excusable  for 
not  having  investigated  a  capacity  which  no  particular  fact  or  circum- 
stance authorized  them  to  suspect. 

If  one  considers  the  greater  interest  of  the  security  of  a  holder  in 
dealing  with  commercial  paper,  a  bill  of  exchange  is  sufficiently  pro- 
tected b}'  holding  that  the  bearer  who  has  discounted  the  signature  of 
a  foreigner  in  ignorance  of  his  qualit}-  and  of  the  law  which  forl)ids  him 
to  contract  has  acted  in  good  faith  and  with  the  degree  of  care  which 
the  nature  of  the  contract  requires. 

It  follows  that  the  Count  of  Santo  Venia  is  justified  neither  in  law 
nor  in  fact  in  asserting  the  nullity  of  the  obligation  he  has  contracted. 


A.  V.  C. 

Supreme  Court  of  Austria.     1882. 
[Reported  13  Clunet,  468.] 

A.,  a  Prussian,  came  of  age,  according  to  the  Prussian  law,  on  Janu- 
ary 24,  1878,  when  she  reached  the  age  of  twenty-one.  She  married 
C,  an  Austrian,  August  25,  1879  ;  and  on  October  19,  1880,  at  Prague, 
she  accepted  a  bill  of  exchange.  Being  sued  by  A.  on  the  bill,  she 
alleged  that  at  the  time  of  the  acceptance  she  had  not  reached  the  age 
of  twenty-four,  and  accordingl\'  was  not  of  age  by  the  Austrian  law, 
nor  capable  of  binding  herself  on  a  bill  of  exchange  or  negotiable  note. 

The  lower  court  allowed  the  defence  on  the  ground  that  she  had 
become  Austrian  by  marriage,  and  that  one  who  becomes  an  Austrian 
submits  himself  to  Austrian  laws,  and  his  capacity  should  be  determined 
b}"  those  laws.^ 

On  appeal,  the  judgment  was  reversed,  for  the  following  reasons  : 
The  defendant  had,  as  a  Prussian,  reached  her  majoritv  on  January  24, 
1878  ;  she  then  became  capable  of  accepting  a  bill  of  exchange.  She 
alleges  that  on  her  marriage  with  an  Austrian  this  capacity  ceased.  It 
is  true  that  she  became  an  Austrian,  but  this  fact  could  not  deprive 
her  of  rights  already  acquired,  and  she  should  be  considered  as  of  age 
and  capable  at  all  times  after  January  24,  1878. 

On  appeal  to  the  Supreme  Court  this  judgment  was  confirmed. 

1  The  text  of  the  judgment  is  omitted.— Ed. 


SEC-1'.  11.]  X.    V.   Y.  37 


X.  c.  Y. 
Civil  Tribi-xal  of  the  Seine.     1893. 

[Re],orted  20  Clunet,  530.] 

The  Tribunal.  The  firm  of  X.,  ladies'  tailors,  delivered  to  Mrs.  Y. 
between  April  and  August,  1888,  clothes  and  furnishings  amounting  to 
the  sum  of  404  francs.     They  brought  suit  for  payment  May  20,  1890. 

The  defendant,  a  Frenchwoman  by  origin,  married  at  Paris  in  1876 
Y.,  an  English  merchant,  then  domiciled  at  P.,  and  thereby  became 
English.  B}'  the  terms  of  their  marriage  contract  the  spouses  adopted 
the  s^'stem  of  community  of  goods,  as  established  by  the  French  Civil 
Code.  Soon  after  the  marriage,  Y.  moved  his  business  and  his  resi- 
dence to  Paris.  By  a  judgment  of  this  Tribunal  in  1889  a  separation 
of  goods  was  decreed  between  Mrs.  Y.  and  her  husband,  and  by  a 
second  judgment  of  May  6,  1890,  they  were  divorced. 

The  plaintiffs  claim,  in  the  first  place,  that  Mrs.  Y.  is  liable  to  them 
in  the  action  de  in  rem  rerso  ;  or  else  by  her  personal  undertaking 
made  after  the  separation  of  goods  to  pay  the  debt  in  question  ;  in  the 
second  place,  that  in  an}-  case  ^Irs.  Y.  being  English  should  be  bound 
b}'  her  national  law,  and  ojiight  legally'  bind  lierself  without  her  hus- 
band's consent  b}'  virtue  of  the  English  Act  of  August  18,  1882. 

On  the  first  point,  there  is  no  doubt  that  according  to  the  French 
Civil  Code  Mrs.  Y.  would  not  be  bound.  So  far  as  the  action  de  in 
rem  verso  is  concerned,  the  furnishings  were  made  almost  a  j'ear  before 
the  separation  of  goods,  and  therefore  constituted  a  communit}'  debt, 
according  to  Articles  214  and  1409,  §  5,  of  the  Civil  Code.  Admitting 
that  the  defendant  got  the  benefit  of  them,  it  was  onh'  as  an}'  married 
woman  living  with  her  husband  with  community  of  goods  would  get  a 
benefit.  The  community,  which  Mrs.  Y.  gave  up  in  1889,  would  alone 
be  bound.  Regarding  her  personal  undertaking  to  pay,  by  her  card 
addressed  to  X.  March  10,  1889,  supposing  the  defendant  wished  to 
make  a  personal  undertaking,  the  agreement  was  null  for  default  of 
authority  from  her  husband.  By  virtue  of  the  principles  laid  down 
in  Articles  217  and  1449  of  the  Civil  Code,  a  wife  after  separation 
of  goods  can  contract  without  her  husband's  authority  only  within  the 
limits  of  a  wise  administration  ;  and  one  could  not  claim  that  this  con- 
tract would  fall  within  such  limits,  since,  in  undertaking  to  pay  a  debt 
for  which  she  was  not  bound,  according  to  the  principles  of  our  law, 
Mrs.  Y.  would  have  done  an  act  without  consideration,  a  pure  gratuity. 

On  the  second  point,  it  is  generally  agreed  tiiat  foreigners  in  France 
are  governed,  so  far  as  concerns  tlieir  civil  status  and  capacity,  by 
their  national  law.  If  this  principle  is  not  expressly  laid  down  in  any 
text  of  the  law,  it  follows  by  implication  from  Article  3  of  the  Civil 
Code,  which  assumes  tlie  princi|)le  of  the  [)rei)onderance  of  the  national 
law  as  regards  personal  condition  ;  and  having  imposed  on  foreigners 


38  X.  V.  Y.  [chap.  VI. 

the  French  law  in  matters  of  police  and  safet}',  and  with  respect  to 
their  immovables,  remains  silent  as  to  their  status  and  their  civil 
capacity.  '.  .  .  B3'  the  terms  of  Articles  1  and  2  of  the  English  Act 
of  August  18,  1882,  altering  the  law  as  to  the  property  of  married 
women,  a  married  woman  may  contract  as  if  she  were  sole,  so  as  to 
bind  her  separate  estate,  and  may  be  sued  either  in  contract  or  in  tort 
in  all  respects  as  if  she  were  sole.  Article  44  of  the  same  Act  provides 
that  every  contract  made  b}'  a  married  woman  so  as  to  bind  her  separ- 
ate estate  will  bind  not  onl}'  her  separate  estate  at  the  date  of  the  con- 
tract but  all  after-acquired  estate. 

To  avoid  the  consequences  of  this  law,  Mrs.  Y.  urges  (1)  that  the 
French  jurisprudence  applies  to  foreigners  the  rules  of  their  statute 
personal  onlj'  so  far  as  the  national  law  of  the  foreigners  does  not 
remit  them,  as  to  their  status  and  capacity,  to  the  law  of  the  country 
where  they  are  domiciled  ;  and  that  in  fact  English  law  remits  English- 
men to  the  law  of  their  domicil :  (2)  that  in  adopting  the  French  sys- 
tem of  community  she  has  renounced  her  national  law,  at  least  so  far 
as  her  capacity  is  concerned,  and  the  authority  of  her  husband  is  there- 
fore necessary.^ 

As  to  the  first  objection,  the  principle  of  Conflict  of  Laws  that  the 
defendant  sets  up  as  being  the  English  law  is  not  certain.  In  England, 
in  fact,  the  Conflict  of  Laws  is  not  the  subject  of  positive  statutory 
regulation,  but  depends  on  the  "  Common  law,"  that  is,  on  customarv 
law,  which  is  interpreted  and  moulded  from  day  to  day  by  jurisprud- 
ence. The  English  courts  when  dealing  with  conflicts  between  the 
English  law  and  foreign  laws  in  matters  of  status  and  personal  capac- 
ity have  a  variable  doctrine.  Having  allowed  preponderance  to  the 
law  of  the  act,  they  incline  in  fact  to  substitute  for  it  in  practice  the 
law  of  the  domicil ;  but  this  is  no  more  than  a  present  tendenc}'  of 
English  jurisprudence  toward  a  doctrine,  a  tendency  which  cannot  be 
characterized  as  the  law  of  England.  But  were  this  rule  certain,  we 
could  not  accept  the  remission  by  the  foreign  law  to  the  law  of  the 
domicil.  In  deciding  that  the  law  applicable  to  the  status  and  capac- 
ity of  foreigners  in  France  is  their  national  law,  the  French  legislator 
considers  that  since  the  status  and  capacity  of  persons  are  dependent 
strictly  on  their  national  characteristics,  that  law  is  better  calculated 
than  an}'  other  to  appreciate  the  conditions  whence  the  rule  of  law  is 
derived ;  and  that  such  law  should  be  followed  from  high  motives  of 
reason  and  justice.  But  in  adopting  tliis  principle,  the  legislator  does 
not  have  in  view  the  rule  of  international  law  in  force  in  this  case  in  the 
foreign  system  of  law  ;  since  the  French  law  itself,  in  the  exercise  of  its 
sovereignty,  establishes  the  rule,  and  solves  the  conflict  of  French  law 
with  foreign  laws,  providing  that  foreigners  shall  be  governed  while  in 
France  by  their  statute  personal,  and  directing  the  French  judges  to 
apply  to  them  their  national  law.     This  is  an  imperative  rule,  to  which 

i  Part  of  the  opinion,  in  which  this  second  objection  is  hehi  unfounded,  is  omitted. 
—  Ed. 


SECT.  II.]  RETNAUD    V.    MARTEL.  39 

conformation  has  become  necessary  ;  and  we  cannot  substitute  for  it  the 
different  conception  of  a  foreign  system  of  law  which  attaches  more 
importance  in  such  a  matter  to  the  domicil  than  to  the  nationality. 
It  follows  that  in  this  case  the  law  applicable  to  the  capacity  of  Mrs. 
Y.  is  the  English  Act  of  1882,  relative  to  the  capacity  of  married 
women  ;  and  by  virtue  of  this  law  the  defendant  legally  bound  herselt 
without  her  husband's  authorization.  .  .  . 


REYNAUD   V.   MARTEL. 
Court  of  Appeal  of  Grenoule.     1892. 

[Reported  19  Clunet,  114.3.] 

The  Court.  Peter  Clapier  was  on  June  18,  1891,  condemned  by 
the  Court  of  Assizes  of  Gap  to  five  years'  imprisonment  at  hard  labor 
for  a  rape.  According  to  the  provisions  of  article  29  of  the  Penal  Code 
the  condemned  is  under  legal  interdiction  as  long  as  his  punishment 
lasts  ■  and  Maitre  iMartel,  notary  at  Serres,  has  been  appointed  his 
cruardian.  This  interdiction,  which  deprives  the  condemned  of  the  use 
and  administration  of  his  property,  is  complementary  to  the  principal 
punishment;  by  the  terms  of  the  law,  punishment  at  hard  labor  neces- 
sarily involves  the  accessorial  punishment  of  legal  interdiction. 

By  the  terms  of  Art.  3  of  the  Civil  Code,  laws  of  police  and  safety 
bind  all  inhabitants  of  French  territory ;  Clapier,  an  Italian  subject, 
but  condemned  in  France  for  a  crime  committed  on  French  territory,  is 
bound  by  the  French  repressive  laws.  Although  the  laws  which  create 
the  statute  personal  of  foreigners  govern  them  in  France,  this  rule  ex- 
tends only  to  civil  laws  ;  the  safety  of  society  requires  that  the  criminal 
laws  of  France  should  bind  all  who  inhabit  French  territory.  Whatever 
the  provisions  of  the  Italian  Code,  Clapier,  on  his  condemnation  to  five 
years'  imprisonment  with  hard  labor  in  France,  is  subject  by  the  French 
penal  code  to  the  accessorial  punishment  of  legal  interdiction  while  tlie 
principal  punishment  lasts. 

The  interdicted  individual  cannot  himself  appear  in  the  action  for 
damages  brought  against  him  by  Reynaud,  his  victim's  father;  and  the 
plaintiff  has  lightly  brouglit  the  action  against  the  guardian,  Maitre 
Martel,  who  is  his  legal  representative. 


40  GUMMING   V.    GUMMING.  [CHAR  VI. 


GUMMING  V.    GUMMING. 

Court  of  Appeal  of  Paris.     1895. 
{Reported  23  C'lunet,  147.] 

The  Widow  Gumming  applied  for  a  conseil  Judiciaire  for  her  son 
William  Gumming,  by  reason  of  his  prodigality.  The  Tribunal  of  the 
Seine  dismissed  the  application,  and  the  plaintiff  appealed. 

The  Goukt.  As  a  result  of  the  general  principles  of  law  and  of  the 
provisions  of  Art.  3  of  the  Givil  Code,^  foreigners  living  in  France  are 
governed  by  their  national  law  in  all  that  concerns  their  status  and 
personal  capacity.  The  rule  that  the  statute  personal  follows  the  person 
is  a  rule  of  public  order  which  binds  French  judges  in  the  case  of  con- 
flicts between  different  systems  of  law.  It  is  not  proved  by  any  written 
law  or  by  sufficiently  trustworthy  documents  that  according  to  the 
English  law  the  status  of  persons  domiciled  abroad  is  governed  not  by 
the  statute  personal,  but  by  the  law  of  the  domicil,  to  the  exclusion  of 
that  of  the  allegiance  ;  but  even  if  such  a  rule  exists,  it  could  be  applied, 
.according  to  the  evidence,  only  when  the  foreigner  had  definitively  fixed 
his  domicil  in  France  animo  manendi.  Though  Gumming  established 
himself  in  business  in  France,  it  is  not  proved  that  he  had  abandoned 
the  intention  to  return  ;  he  did  not  apply  to  be  admitted  to  the  en- 
joyment of  civil  rights,  but  on  the  contrar}'  preserved  and  in  all  cir- 
cumstances maintained  his  nationalitj'  of  origin  ;  he  therefore  remains 
subject  to  his  national  law  in  everything  that  concerns  his  personal  status. 
The  English  law  does  not  recognize  the  institution  of  the  conseil  judi- 
ciaire. Therefore,  without  going  into  the  case  on  the  merits,  the  court 
declares  the  Widow  Gumming  unable  to  maintain  her  application,  and 
orders  her  to  pay  costs  of  the  original  application  and  of  the  appeal. 

'  "  Laws  of  poUce  and  of  safety  bind  all  inhabitants  of  the  territory.  Immova- 
bles, even  those  in  the  possession  of  foreigners,  are  governed  by  the  law  of  Fran(;e. 
Laws  concerning  personal  status  and  capacity  bind  Frenchmen,  even  while  residing 
abroad."  —  Ed. 


SECT.  III. J  DALKYMPLE   V.   DALRYMPLE-  41 


SECTION   III. 

MARRIAGE. 


DALRYMPLE  v.   DALRYMPLE. 
CoNSiSTOKY  Court  of  London.     1811. 

[Reported  2  Haggard  Consistory,  54.] 

This  was  a  case  of  restitution  of  conjugal  rights,  brought  by  the  wife 
against  the  husband,  in  which  the  chief  point  in  discussion  was,  the 
validity  of  a  Scotch  marriage,  ^^er  cerba  de  pnesenti,  and  without  reli- 
gious celebration  :  one  of  the  parties  being  an  English  gentleman,  not 
otherwise  resident  in  Scotland  than  as  quartered  with  his  regiment  in 
that  country. 

Sir  William  Scott. ^  The  cause  has  proceeded  regularly  on  both 
sides,  and  has  been  instructed  with  a  large  mass  of  evidence,  much  of 
it  replete  with  legal  erudition,  for  which  the  court  has  to  acknowledge 
great  obligations  to  the  gentlemen,  who  have  been  examined  in  Scotland. 
It  has  also  been  argued  with  great  industr}-  and  ability  b}'  the  counsel 
on  both  sides,  and  now  stands  for  final  judgment.  Being  entertained 
in  an  English  court,  it  must  be  adjudicated  according  to  the  principles 
of  English  law  applicable  to  such  a  case.  But  the  only  principle  appli- 
cable to  such  a  case  by  the  law  of  England  is  that  the  validity  of  Miss 
Gordon's  marriage  rights  must  be  tried  by  reference  to  the  law  of  the 
country  where,  if  they  exist  at  all,  they  had  their  origin.  Having  fur- 
nished this  principle,  the  law  of  England  withdraws  altogether,  and 
leaves  the  legal  question  to  the  exclusive  judgment  of  the  law  of 
Scotland.   .    .  . 

The  considerations  that  applv  to  the  indiscretions  of  youth,  to  the 
habits  of  a  military  profession,  and  to  the  ignorance  of  the  law  of  Scot- 
land, arising  from  a  foreign  birth  and  education,  are  common  to  both, 
and  I  might  say,  to  all  systems  of  law.  The}'  are  circumstances,  which 
are  not  to  be  left  entirely  out  of  the  consideration  of  the  court,  in  weigh- 
ing the  evidence  for  the  establishment  of  the  facts,  but  have  no  power- 
ful effect  upon  the  legal  nature  of  the  transaction  when  established. 

The  law,  which,  in  both  countries,  allows  the  minor  to  marry,  attri- 
butes to  him,  in  a  way  which  cannot  be  legalh'  averred  against,  upon 
the  mere  ground  of  youth  and  inexperience,  a  competent  discretion  to 
dispose  of  himself  in  marriage;  he  is  arrived  at  3'ears  of  discretion. 
qvoad  hoc^  whatever  he  ma}'  be  with  respect  to  other  transactions  of 
life,  and  he  cannot  be  heard  to  plead  flu;  indiscretion  of  minority.  Still 
less  can  the  habits  of  a  ])articular  profession  exonerate  a  man  from  the 

^  Part  of  the  opiiiiijii  is  omitted.  —  Ed. 


42  DALRYMPLE  V.   DALKYMPLE.  [CHAP.  VI. 

general  obligations  of  law.  And  with  respect  to  any  ignorance  arising 
from  foreign  birth  and  education,  it  is  an  indispensable  rule  of  law,  as 
exercised  in  all  civilized  countries,  that  a  man  who  contracts  in  a 
country,  engages  for  a  competent  knowledge  of  the  law  of  contracts  in 
that  country.  If  he  rashly  presumes  to  contract  without  such  knowl- 
edge, he  must  take  the  inconveniences  resulting  from  such  ignorance 
upon  himself,  and  not  attempt  to  throw  them  upon  the  other  party,  who 
has  engaged  under  a  proper  knowledge,  and  sense  of  the  obligation, 
which  the  law  would  impose  upon  him  by  virtue  of  that  engagement. 
According  to  the  judgment  of  all  the  learned  gentlemen  who  have  been 
examined,  the  law  of  Scotland  binds  Mr.  Dalrymple,  though  a  minor, 
a  soldier,  and  a  foreigner,  as  effectively  as  it  would  do  if  he  had  been 
an  adult,  living  in  a  civil  capacity,  and  with  an  established  domicil  in 
that  country. 

The  marriage,  which  is  pleaded  to  be  constituted,  by  virtue  of  some 
or  all  of  the  facts,  of  which  I  have  just  given  the  outline,  and  to  which 
I  shall  have  occasion  more  particularly  to  advert  in  the  course  of  my 
judgment,  has  been  in  the  argument  described  as  a  clandestine  and 
irregular  marriage.  It  is  certainly  a  private  transaction  between  the 
individuals,  but  it  does  not  of  course  follow  that  it  is  to  be  considered 
as  a  clandestine  transaction,  in  any  ignominious  meaning  of  the  word  ; 
for  it  may  be  that  the  law  of  the  country  in  which  the  transaction  took 
place  may  contemplate  private  marriages  with  as  much  countenance 
and  favor  as  it  does  the  most  public.  It  depends  likewise  entirely 
upon  the  law  of  the  country  whether  it  is  justly  to  be  styled  an  irregular 
marriage.  In  some  countries  one  only  form  of  contracting  marriage  is 
acknowledged,  as  in  our  own,  with  the  exception  of  particular  indul- 
gences to  persons  of  certain  religious  persuasions  ;  saving  those  excep- 
tions, all  marriages  not  celebrated  according  to  the  prescribed  form 
are  mere  nullities  ;  there  is  and  can  be  no  such  thing  in  this  country  as 
an  irregular  marriage.  In  some  other  countries,  all  modes  of  exchang- 
ing consent  being  equally  legal,  all  marriages  are  on  that  account  equally 
reo-ular.  In  other  countries,  a  form  is  recommended  and  sanctioned, 
bu"  with  a  toleration  and  acknowledgment  of  other  more  private  modes 
of  effecting  the  same  purpose,  though  under  some  discountenance  of  the 
law,  on  account  of  the  non-conformity  to  the  order  that  is  established. 
What  is  the  law  of  Scotland  upon  this  point?   .   .   . 

I  entertain  as  confident  an  opinion  as  it  becomes  me  to  do,  that  the 
rule  of  the  law  of  Scotland  remains  unshaken  ;  that  the  coutract  de 
prceseyiti  does  not  require  consummation  in  order  to  become  "  very 
matrimony  ;  "  that  it  does,  ipso  facto  et  ipso  jure,  constitute  the  relation 
of  man  and  wife.  .  .  .  When  I  speak  of  a  contract,  I  mean  of  course 
one  that  is  attended  with  such  qualifications  as  the  law  of  Scotland 
requires  for  such  a  contract.^  .   .  . 

1  The  court,  upon  examining:  the  evidence,  held  that  in  this  case  a  marriage  had 
taken  place  according  to  the  Scotch  law.  —  Ed. 


SECT.  III. J  IN'    I'^E    LUM    LIX    YING.  43 

Little  now  remains  for  me  but  to  pronounce  the  formal  sentence  of 
tlie  court ;  .  .  .  and  1  think  I  discharge  that  duty  in  pronouncing  that 
Miss  Gordon  is  the  legal  wife  of  John  William  Henry  Dalrymple,  Esq., 
and  that  he,  in  obedience  to  the  law,  is  bound  to  receive  her  home  in 
that  character,  and  to  treat  her  with  conjugal  affection,  and  to  certify 
to  this  court  that  he  has  so  done,  by  the  first  Session  of  the  next 
Term.^ 


In  re  LUM  LIN  YING. 

United  States  District  Cox^kt  (District  of  Oregon).     1891. 

[Reported  59  Federal  Reporter,  682.] 

Bellinger,  J.  It  is  admitted  that  the  person  claiming  to  be  the 
husband  of  the  petitioner  is  a  merchant  doing  business  in  this  city. 
Ls  the  petitioner  his  wife?  He  testified  that  she  was  betrothed  to  him 
at  two  years  of  age,  and  that  six  months  ago  the  marriage  was  solem- 
nized according  to  the  laws  of  China.  He  further  testified  that  he  had 
never  seen  his  wife  until  her  arrival  here.     Upon  this  last  statement, 

1  concluded  to  remand  the  [)etitioner,  without  further  inquiry,  but 
deferred  to  the  urgent  request  of  her  attorneys  to  be  heard  as  to  this 
alleged  China  marriage,  and  as  to  the  l>o?ia  fides  of  the  marriage 
transaction. 

The  only  authority  cited  as  to  what  constitutes  the  solemnization  of 
marriage  under  Chinese  laws  is  an  article  in  the  Encyclopedia  IJritannica 
by  Prof  R.  K.  Douglas,  professor  of  Chinese  in  King's  College,  London. 
According  to  this  authority,  marriage  in  China  is  an  arrangement  with 
which  the  parties  most  concerned  have  nothing  to  do.  The  duty  of 
filial  piety  is  said  to  be  the  final  object  of  Chinese  religious  teaching, 
and,  under  its  'infiuence,  parental  will  is  a  supreme  authority,  from 
which  there  is  no  api)eal.  .Marriage,  therefore,  is  not  the  result  of 
acquaintanceship.  "The  bridegroom  rarely  sees  his  betrothed  until 
she  has  become  his  wife."  The  preliminaries  are  entirely  arranged  by 
professional  go-betweens  with  the  parents  and  families  of  the  respective 
parties.  The  correspondence  between  the  two,  thus  conducted,  is  in 
writing,  and  is  of  the  briefest  character.  If  the  arrangements  proceed 
satisfactoiily,  the  particulars  of  the  engagement  are  committed  to 
writing  upon  duplicate  cards.  Tiieso  are  sewn  together,  and  the  cere- 
inoiiy  is  complete.  The  bride  journeys  to  the  home  of  her  husband,  who 
iii;iv  then  see  her  for  the  first  time.  This  is  the  system  under  which 
tlic  marriage  relied  ui)on  in  tliis  case  is  claimed  to  have  taken  i)lace, 

'  \']tim  successive  appeals,  tlie  Court  of  Arches  ami  the  Court  of  DeleRatos  allirincd 
tlie  sentence  of  the  Consistory  (Jourt. 

Acr.  Scriinshire  v.  Scrimshire,  2  Magg.  Cons.  .TJ.'J ;  Rririkley  c.  A.  G.,  1.5  ]'.  I).  7f> ; 
McDeeil  >•.  McDeed,  67  111.  54.') ;  Smith   r.   Smith,  52,   N.  .1.  I..  207  ;  S.   r.   Patterson, 

2  Ire.  340  ;   rhillij)s  v.  fJregf,'.  10  Watts.  15H.  —  Ki.. 


M  NOEMAN    V.    NORMAN.  [CHAP.  VI. 

and  is  consistent  with  such  marriage.  The  fact  that  such  a  marriage 
did  take  place,  as  testified  to  by  the  parties,  is  not  contradicted,  and 
is  consistent  with  all  the  circumstances  appearing  in  the  case. 

If  the  parties  were  married  according  to  the  laws  of  China,  such 
marriage  is  valid  here.  Parsons  on  Contracts  says  that  ''it  seems 
to  be  generally  admitted,  and  is  certainly  a  doctrine  of  English  and 
American  law,  that  a  marriage  which  is  valid  in  the  place  where  it  is 
contracted  is  valid  everj'where.  The  necessity  and  propriety  of  this 
rule  are  so  obvious  and  so  stringent  that  it  can  hardly  be  called  in 
question."  This  rule  is  subject  to  the  qualification  that  a  marriage 
made  elsewhere  would  not  be  acknowledged  as  valid  in  a  State,  the 
laws  of  which  forbade  it  as  incestuous.  Meyer's  Federal  Decisions 
says  the  general  rule  is  undoubtedly  that  a  marriage  good  by  the  law 
of  the  place  of  solemnization  is  good  everywhere. 

At  the  time  of  the  marriage  in  question  in  this  case,  the  husband 
was  domiciled  in  the  United  States.  This  raises  a  question,  as  to 
whether  China  is  the  place  of  solemnization  of  the  marriage.  While 
the  place  of  solemnization  governs,  by  wiiat  rule  shall  such  place  be 
determined,  when  the  parties  are  at  the  time  within  different  jurisdic- 
tions? It  is  doubtful  whether  this  is  a  China  marriage.  It  is  not  enough, 
in  my  judgment,  that  such  a  marriage  is  valid  under  the  laws  of  China. 
I  am  of  opinion  that  it  must  not  only  be  valid  under  such  laws,  but,  to 
be  valid  elsewhere,  must  have  been  solemnized  within  the  jurisdiction 
of  those  laws.^ 


NORMAN   y.    NORMAN. 

Supreme  Court  of  Califdrnia.     1898. 

[Reported  121  California,  620.] 

Chipman,  C.  Action  to  have  a  certain  marriage  ])etween  plaintiff 
and  defendant  declared  valid  and  binding  upon  the  i)arties.  A  second 
amended  complaint  alleged  that  on  August  2,  1897,  defendant  was  a 
minor  of  the  age  of  fifteen  years  and  ten  montiis,  and  that  her  father, 
one  A.  C.  Thomson,  was  her  natural  and  only  guardian;  plaintiff  was 
of  the  age  of  twent^'-one  years  and  ten  months,  and  that  both  plaintiff 
and  defendant  were  citizens  and  residents  of  Los  Angeles  County, 
California;  on  said  day  plaintiff  and  defendant,  at  Long  Beach,  on  the 
coast  of  California,  boarded  a  certain  fishing  and  pleasure  schooner 
of  seventeen  tons  burden,  called  the  "J.  AYilley,"  duly  licensed  under 
the  laws  of  the  United  States,  of  which  W.  L.  Pierson  vras  captain, 

1  Upon  the  evidence,  the  court  held  that  the  petitioner  "  does  not  belong  to  any 
class  of  persons  within  the  exclusion  acts  of  Congress,"  and  therefore  ordered  her  dis- 
charge, without  deciding  tlie  question  as  to  marriage.  See  Kep.  v.  Li  Shee,  12  Hawaii, 
329.  —  Ed. 


SECT.  III.]  NOKMAN    V.    NORMAN.    '  45 

and  was  enrolled  as  master  thereof,  and  bad  full  charge  of  said  vessel ; 
said  vessel  proceeded  to  a  point  on  the  high  seas  about  nine  miles 
from  the  nearest  point  from  the  boundary  of  the  State  and  of  tlie 
United  States  ;  the  parties  then  and  there  agreed,  in  the  presence 
of  said  Pierson,  to  become  husband  and  wife,  and  the  said  Pierson 
performed  the  ceremon}'  of  marriage,  and  among  other  things  they 
promised  in  his  presence  to  take  each  other  for  husband  and  wife, 
and  he  pronounced  them  husband  and  wife ;  neither  party  had  the 
consent  of  the  father  or  mother  or  guardian  of  defendant  to  said  mar- 
riage ;  on  the  same  day  and  immediately  after  said  ceremou}-  the 
parties  returned  to  the  county  of  Los  Angeles,  and  have  ever  since 
resided  there,  and  they  then  and  there  immediately  began  to  live  and 
cohabit  together  as  such  husband  and  wife,  and  continued  so  to  do 
until  the  tenth  day  of  August,  1897;  said  marriage  has  never  been 
dissolved  ;  defendant  denies  the  validity  of  said  marriage  and  refuses 
to  join  in  a  declaration  thereof. 

Defendant,  by  her  guardian  ad  litem,  admits  the  allegations  of 
the  complaint,  and  alleges  that  in  having  the  ceremony  performed 
as  alleged  plaintiff  and  defendant  did  so  with  the  intent  and  for 
the  purpose  of  evading  the  statutes  of  the  State  prescribing  the 
manner  in  which  marriages  shall  be  contracted  and  solemnized.  She 
prays  that  the  said  pretended  marriage  be  declared  illegal  and  void, 
and  that  plaintiff  be  precluded  and  estopped  from  exci-  setting  up  or 
asserting  or  claiming  to  be  the  husband  of  defendant.  The  court  found 
all  the  allegations  of  the  complaint  and  answer  to  be  true,  and  as  con- 
clusion of  law  found  that  plaintiff  was  not  entitled  to  the  relief  claimed, 
but  that  the  said  pretended  marriage  was  illegal  and  void,  and  judg- 
ment was  entered  accordingly-. 

The  appeal  is  from  the  judgment.  The  action  is  brought  under 
section  78  of  the  Civil  Code.  It  nuist  be  conceded  that  the  question 
presented  by  this  appeal  is  one  of  much  importance,  whether  viewed  in 
its  relation  to  society  or  to  the  parties  only. 

Appellant  contends  :  1.  That  the  marriage  is  valid  because  per- 
formed upon  the  high  seas  ;  and  2.  Tliat  it  would  have  been  valid  if 
performed  within  this  State,  because  there  is  no  law  expressly  declaring 
it  to  be  void.  Respondent  presents  the  case  upon  two  propositions, 
claiming:  1.  That  no  valid  marriage  can  be  contracted  in  this  State 
except  in  compliance  witli  the  prescribed  forms  of  the  laws  of  this 
State ;  and  2.  That  citizens  and  domiciled  residents  cannot  go  upon 
the  higli  seas  for  tiie  avowed  purpose  of  evading  the  law  of  this  State, 
and  contract  a  valid  marriage. 

Sections  722,  4082,  and  4290  of  the  Revised  Statutes  of  the  United 
States  are  cited  by  appellant  as  recognizing  marriages  at  sea  and  before 
ibreitfn  consuls,  and  that  section  722  declares  the  common  law  as  to 
marriage  to  be  in  force  on  the  iiigh  seas  on  board  American  vessels. 
"We  have  carefully  examined  the  statutes  referred  to  and  do  not  find 
that  they  give  the  sliglitest  support  to  appellant's  claim. 


46  NORMAN   V.    NORMAX.  [ciIAP.  VI. 

The  law  of  the  sea,  as  it  ma}-  relate  to  the  marriage  of  citizens  of  the 
United  States  domiciled  in  California,  cannot  be  referred  to  the  com- 
mon law  of  England  any  more  than  it  can  to  the  law  of  France  or 
Spain  or  any  other  foreign  country.     We  can  find  no  law  of  Congress, 
and  none  has  been  pointed  out  b}'  appellant,    in   which  the  general 
government  has  undertaken  or  assumed  to  legislate  generally-  upon  tlie 
subject  of  marriage  on  the  sea.     Nor,  indeed,  can  we  find  in  the  grant 
of  powers  to  the  general  government  by  the  several  States,  as  expressed 
in  the  national  constitution,  any  provision  b}'  which  Congress  is  em- 
powered  to  declare  what  shall  constitute  a  valid  marriage   between 
citizens  of  the  several  States  upon  the  sea,  either  within  or  without  the 
conventional  three-mile  limit  of  the  shore  of  any  State  ;  and  clearly 
does  no  such*  power  rest  in  Congress  to  regulate  marriages  on  land 
except  in  the  District  of  Columbia  and  the  territories  of  the  United 
States,  or  where  it  possesses  the  power  of  exclusive  jurisdiction.     We 
must  look  elsewhere  than  to  the  Acts  of  Congress  for  the  law  governing 
the  case  in  hand.     Section  63  of  the  Civil  Code  provides  as  follows  : 
"  All  marriages  without  this  State,  which  would  be  valid  by  the  laws  of 
the  country  in  which  the  same  were  contracted,  are  valid  in  this  State." 
The  parties  in  the  present  case  were  residents  of  and  domiciled  in  this 
State  and  went  upon  the  high  seas  to  be  married  with  the  avowed  purpose 
of  evading  our  laws  relating  to  marriage.     It  seems  to  be  well  settled 
that  the  motive  in  the  minds  of  the  parties  wall  not  change  the  opera- 
tion of  the  rule.     Chief  Justice  Gray,  in  Commonwealth  v.  Lane,  1 13 
Mass.  458,  18  Am.  Rep.  509,  said:   "  A  marriage  wliich  is  prohibited 
here  by  statute,  because  contrary  to  the  policy  of  our  laws,  is  yet  valid 
if  celebrated  elsewhere  according  to  the  law  of  the  place,  even  if  the 
parties  are  citizens  and  residents  of  this  commonwealth,  and  have  gone 
abroad  for  the  purpose  of  evading  our  laws,  unless  the  legislature  has 
clearly  enacted  that  such  marriages  out  of  the  State  shall  have  no 
validity  here."     This  has  been  repeatedly  aflBrmed  by  well-considered 
decisions.     The  authorities  are  found  fully  reviewed  in  that  case,  as 
they  also  will  be  found  in  support  of  the  general  rule  in  Milliken  v. 
Pratt,   125  Mass.  374,  28  Am.  Rep.  241,  by  the  same  learned  jurist. 
See,  also,  as  to  marriages  in  evasion  of  the  law  of  the  domicil  of  the 
parties,  Bishop  on  Marriage  and  Divorce,  §  880  et  seg.    If  the  marriage 
in  question  can  find  support  by  the  laws  of  any  country  having  juris- 
diction of  the  parties  at  the  place  where  the  marriage  ceremony  was 
performed,  we  should  feel  constrained  by  our  code  rule  and  well-con- 
sidered decisions  to  declare  it  valid  here,  even  though  the  parties  were 
here  domiciled  at  the  time  and  went  to  the  place  where  they  attem[)ted 
to  be  married  for  the  purpose  of  evading  our  laws  which  they  believed 
forbade  the  banns.     But  the  parties  did  not  go  to  any  other  State  or 
country   to   be   married.      They   went   upon    the   high   seas   where   no 
written  law,  of  which  we  have  any  knowledge,  existed  by  which  mar- 
riage could  be  solemnized.     The  rule,  therefore,  that  the  law  of  the 
place  must  govern  does  not  operate,  because  there  was  no  law  of  the 


SECT.  III.]  NORMAN    V.    NORMAN.  47 

place  unles.s  we  may  hold  that  the  law  of  the  domieil  applies.  The 
question  presented  is  res  Integra,  so  tar  as  we  have  been  able  to  dis- 
cover ;  and  no  case  in  England  or  the  United  States  or  elsewhere 
has  been  found  by  counsel  (and  their  briefs  disclose  much  researcli 
and  industry)  holding  that  the  code  rule  supra  api)lies  to  such  a  mar- 
riage as  this.  In  the  case  of  Holmes  v.  Holmes,  1  Abb.  (U.  S.)  525, 
the  question  was  whether  a  marriage  had  been  contracted  under  the 
laws  of  California  or  Oregon.  It  seems  that  the  parties,  who  were 
domiciled  in  Oregon,  met  in  San  Francisco  and  there  took  passage  on 
the  steamer  for  Portland.  It  was  at  the  trial  suggested  that  the  mar- 
riage might  have  taken  place  on  board  this  vessel  when  on  the  high 
seas.  There  was  no  evidence  that  the  parties  ever  met  elsewhere 
except  in  California  and  Oregon.  In  the  opinion  by  Deady,  J.,  it  was 
said,  after  showing  that  there  was  no  valid  marriage  under  the  laws  of 
either  of  these  States:  "Nor  do  I  think  that  citizens  of  tliis  State 
[Oregon],  as  the  complainant  and  deceased  were,  can  purposely  go 
beyond  its  jurisdiction,  and  not  within  the  jurisdiction  of  another  State 
—  as  at  sea  —  and  there  contract  marriage  contrary  to  its  laws.  Such 
an  attempt  to  be  joined  in  marriage  is  a  fraudulent  evasion  of  the  laws 
to  which  the  citizen  of  the  State  is  subject  and  owes  obedience,  and 
ought  not  to  be  held  valid  by  them."  It  is  said  by  appellant  that  this 
expression  of  opinion  is  but  dictum,  inasmuch  as  the  question  did  not 
necessarily  arise.  This  may  be  true,  but  it  commends  itself  to  our 
judgment  as  wise  and  sound  upon  reason  and  principle.  We  find  no 
case  holding  that  parties  domiciled  in  a  State  may,  for  the  avowed  pur- 
pose of  evading  its  laws,  go  where  no  law  exists  and  there  consummate 
marriage  in  violation  of  the  laws  of  their  domieil,  and  immediately 
return  and  claim  a  valid  marriage.  In  all  the  cases  where  the  statutes 
have  been  thus  circumvented  it  was  accomplished  by  a  marriage  valid 
in  the  place  where  celebrated.  The  Gretna  Green  marriages  of  Scot- 
land between  citizens  of  England  are  iiotalile  examples,  and  they  were 
u[)lield  I)}- the  ecclesiastical  courts.  But- these  mai-riages  were  solem- 
nized in  accordance  with  the  laws  of  Scotland,  and  therefore  had  legal 
sanction  ;  and  so  also  marriages  in  this  country  of  citizens  of  one  State 
going  into  another  to  avoid  some  disqualification  prescribed  in  the  law 
of  their  domieil. 

It  has  been  properly  held  that,  as  marriage  is  a  natural  right  of 
which  no  government  will  allow  its  subjects,  wherever  abiding,  to  be 
<leprived,  if  the  parties  happen  to  be  sojourning  in  a  foreign  country, 
and  under  the  local  law  there  is  no  way  by  which  they  can  enter  into 
valid  marriage,  they  may  marry  in  their  own  forms  and  it  will  be 
recognized  at  home  as  good.  Bisiiop  on  Marriage  and  Divorce,  §  890 
et  serf.  But  this  author  says:  "In  reason,  for  we  have  probablv  no 
arljudications  of  the  (juestion,  a  marriage  void  by  the  law  of  tlie  place 
of  its  celebration,  in  a  case  where  such  law  provides  no  valid  method, 
would  not  be  m;id(,'  good  by  the  rule  we  ar(!  considering  if  the  parties 
went  there  simply  to  avoid  compliance  with  tiie  law  of  their  domieil. 


48  NORMAN    V.    NORMAN.  [CHAP.  VI. 

There  was  no  necessit}' ;  for  their  own  law  was  open  to  them  at  home, 
and  it  would  not  assist  them  in  eluding  its  inhibitions."  And  he  refers 
to  the  case  of  Holmes  c.  Holmes,  supra,  remarking:  "  It  would,  per- 
haps, be  the  same  also  where  the  resort  was,  for  the  like  purpose,  to 
an  uninhabited  region  of  the  high  seas."  In  the  case  before  us,  the 
parties  not  only  went  where  there  was  no  law  authorizing  the  marriage, 
but  they  went  with  the  intention  of  immediatel}'  returning  to  their 
domicil  where  they  supposed  the  law  would  not  admit  of  their  marriage, 
to  enjo}'  the  fruits  of  their  contract.  There  was  no  necessity  upon  the 
parties  to  do  this  suddenly  arising,  or  arising  from  unexpected  surround- 
ing circumstances,  but  the  circumstances  were  of  their  own  creation 
and  for  a  purpose  to  evade  the  law  of  their  home.  There  is,  we  con- 
ceive, no  ground  of  expediency',  sound  polic}',  or  good  morals  upon 
which  the  transaction  can  be  given  legal  sanction.  In  summing  up 
the  doctrine  Mr.  Bishop  says  (Bishop  on  ^Marriage  and  Divorce, 
§  920):  "Therefore  the  rule  necessarily  is,  that  whenever  a  marriage 
is  entered  into,  so  that  the  laws  of  one  countrj^  take  cognizance  of  it, 
it  will  be  accepted  as  a  marriage  in  every  other  country  also ;  on  the 
other  hand,  no  forms  matrimonial  which  come  short  of  constituting 
valid  marriage  in  the  one  country  will  so  bring  it  within  the  cogni- 
zance of  international  law  as  to  make  it  valid  elsewhere."  We  think 
it  results  from  considerations  of  reason  and  principle  that  unless  it 
appears  that  this  marriage  was  consummated  under  some  recognized 
law  the  courts  of  this  State  should  not  declare  it  valid  ;  and  we  think 
the  burden  is  upon  appellant  to  show  such  a  law,  failing  in  which  his 
suit  must  fail.  The  authorities  are  many  to  the  point  that  the  party 
who  relies  upon  the  foreign  law,  or  law  of  another  State,  must  prove 
the  law  by  its  production.  Stewart's  Marriage  and  Divorce,  §  119, 
cases  cited. 

Respondent  cites  the  case  of  Crapo  u.  Kelly,  16  Wall.  610,  where  it 
was  held  that,  in  the  case  of  an  assignment  in  insolvency  in  the  State 
of  Massachusetts,  it  carried  With  it  a  vessel  then  in  the  Pacific  Ocean  ; 
and  in  an  elaborate  opinion  it  was  shown  that,  except  for  the  purposes 
and  to  the  extent  that  certain  attributes  have  been  transferred  to  the 
United  States  by  the  several  States  of  the  Union,  each  possesses  all 
the  rights  and  powers  of  a  sovereign  State,  and  that  the  vessel  in  ques- 
tion was  a  part  of  the  territory  of  the  State  of  Massachusetts,  although 
at  the  time  in  the  Pacific  Ocean,  and  that  the  laws  of  Massachusetts 
would  govern  the  assignment.  It  is  hence  argued  by  respondent  that 
the  law  of  the  domicil  in  the  present  case  should  govern.  There  is 
much  force  in  this  position,  but  we  do  not  deem  it  necessarj'  to  place 
our  decision  on  that  ground.  We  think  the  law  of  the  domicil  of  the 
parties  must  be  the  law  by  which  to  judge  the  validity  or  invalidity  of 
this  marriage  upon  the  grounds  alread3-  stated. 

We  are  thus  brought  to  the  only  remaining  question :  Was  the  mar- 
riage valid  tested  b}'  the  laws  of  California? 

If  this  marriage  can  be  upheld,  it  must  be  nnon  the  sole  ground  that 


SECT.  Ill]  NOKMAN    V.   NORMAN.  49 

there  was  mutual  consent,  solemnization  by  a  sea  captain,  and  subse- 
quent cohabitation  as  husband  and  wife  for  the  -space  of  eight  days. 
What  constituted  marriage  in  this  State,  prior  to  the  amendments  of 
the  code  in  1895  and  1897,  has  been  pretty  well  settled  and  need  not 
be  restated  here.  In  the  light  of  the  history  of  past  litigation,  it  ouglit 
not  to  be  difficult  to  determine  what  is  a  valid  marriage  under  existing 
law.  Section  55  of  the  Civil  Code,  as  amended  in  1895,  provided  as 
follows:  "Marriage  is  a  personal  relation  arising  out  of  a  civil  con- 
tract, to  wliicli  the  consent  of  the  parties  capable  of  making  tliat  con- 
tract is  necessary.  Consent  alone  will  not  constitute  marriage  ;  it 
must  be  followed  by  a  solemnization  authorized  by  this  code."  No 
particular  form  of  solemnization  is  required,  ''but  the  parties  must 
ileclare,  in  the  presence  of  the  person  solemnizing  the  marriage,  that 
they  take  each  other  as  husband  and  wife."     Civ.  Code,  §  71. 

Section  70  of  the  Civil  Code  provides  as  follows:  "Marriage  may 
be  solemnized  by  either  a  justice  of  the  Supreme  Court,  judge  of  the 
Superior  Court,  justice  of  the  peace,  priest,  or  minister  of  the  gospel  of 
any  denomination."  Prior  to  the  amendment  of  1895  the  consent  to 
marriage  was  required  to  be  followed  either  by  "a  solemnization,  or 
by  a  mutual  asswnptioa  of  marital  riyhts,  duties,  or  obligations." 
Civ.  Code,  §  55.  The  amendment  added  the  words  "  authorized  by 
this  code"  after  the  word  "  solemnization"  and  struck  out  the  words 
above  in  italics. 

It  seems  to  me  that  the  intention  of  the  legislature  is  plainly  declared 
that  consent  must  be  followed  by  such  solemnization  as  is  authorized 
by  the  code  or  there  can  be  no  valid  marriage  ;  and  that  this  solemni- 
zation can  only  be  performed  by  the  persons  mentioned  in  section  70, 
supra,  for  no  other  persons  are  so  authorized.  Prior  to  1895  section 
75  of  the  Civil  Code  provided  for  marriages  b\-  declaration  witliout  the 
solemnization  required  by  section  70,  but  the  act  of  3Iarcli  26,  1895, 
swept  away  that  easy  process  of  marriage.  Section  68  of  the  Civil 
Code  was  also  amended  in  1895  in  an  important  particular.  It  now 
reads:  "Marriage  must  be  licensed,  solemnized,  authenticated,  and 
recorded  as  provided  in  this  article  ;  but  noncompliance  with  its  pro- 
visions by  otiier  than  the  parties  to  a  marriaye  does  not  invalidate 
that  marriage."  The  words  in  italics  were  added  to  the  section  as  it 
formerly  stood,  and  would  seem  to  imply  that,  while  there  may  be  non- 
compliance with  the  law  by  parties  other  than  those  seeking  marriage, 
there  cannot  be  by  the  latter.  Section  76  of  the  Civil  Code  now,  as 
heretofore,  makes  provision  for  supplying  the  evidence  of  marriage 
where  no  record  of  the  solemnization  is  known  to  exist ;  and  a  form  of 
written  declaration  is  prescribed.  A  new  section,  79i^,  was  added  to 
the  Civil  Code  in  1897,  which  provides  that  "the  provisions  of  this 
<li;ipter,  so  far  as  they  relate  to  procuring  licenses  and  the  solemnizing 
of  marriage,  are  not  api)licable  to  members  of  any  particular  religious 
denomination  having,  as  such,  any  peculiar  mode  of  entering  the 
marriage  relation."  .    .   .  Section  69  of  llic  Civil  Code  provides  ilint: 

VOL.  II.  —  4 


50  SIMONIN    V.    MALLAC.  [CHAP.  YI. 

"  All  persons  about  to  be  joined  in  marriage  must  first  obtain  a  license 
therefor  from  the  county  clerk."  ...  In  this  case  there  was  no  license, 
there  was  no  solemnization  by  any  person  authorized  by  law  to  perform 
I  the  ceremony,  there  was  no  marriage  under  section  79^.  To  recognize 
such  a  marriage  we  think  would  grossly  violate  the  spirit  and  letter  of 
our  statute  and  be  a  blot  upon  the  civilization  we  profess.  To  give  the 
law  any  just  interpretation  we  must  hold  that,  subject  to  the  exception 
mentioned  in  section  79^,  section  55  requires  not  only  the  consent  of 
parties  capable  of  making  a  contract  of  marriage,  but  that  that  consent 
must  be  followed  by  a  solemnization  authorized  by  the  code,  and  this 
solemnization  can  only  be  performed  by  the  persons  named  in  section 
70.  We  do  not  think  it  necessary  to  decide  whether  it  is  mandatory 
to  obtain  a  license  ;  nor  whether  the  minority  of  the  defendant  and 
want  of  consent  of  her  parents  or  guardian  would  invalidate  the  mar- 
riage. Our  conclusion  rests  upon  the  want  of  any  authorized  solemni- 
zation and  would  be  the  same  if  the  parties  were  both  of  full  age. 
We  recommend  that  the  judgment  be  affirmed.^ 


SIMONIN   V.   MALLAC. 

Court  for  Divorce  and  Matrimonial  Causes.     1860. 

[Reported  29  Laio  Journal,  Probate,  97.2] 

This  was  a  petition  by  Valerie  Josephine  Wilhelmine  Simonin 
(falsely  called  Mallac),  for  a  decree  of  nullity  of  marriage.  The  peti- 
tioner, a  Frenchwoman,  was  living,  in  1853,  in  Paris  with  her  mother; 
she  became  acquainted  with  Leon  Mallac,  a  Frenchman,  who  made  an 
offer  of  marriage,  which  she  accepted.  In  1854  the  parties  came  to 
London  and  were  there  married  in  due  form.  Leon  Mallac  was  then  of 
the  age  of  twent^'-nine  years,  and  the  petitioner  twenty-two.  The  con- 
sent of  Mallac's  father  had  not  been  obtained.  The  marriage  was  not 
consummated,  and  the  parties  returned  to  Paris.  Mallac  afterwards 
refused  to  marry  the  petitioner  in  France.  She  then  instituted  before 
the  Civil  Tribunal  of  the  Seine  a  suit  to  procure  a  decree  of  nullity  of 
the  pretended  marriage.  On  December  1,  1854,  a  decree  was  made,  of 
which  the  following  is  the  substance. 

A  marriage  abroad  between  French  subjects  must  be  preceded  by 
publication  in  France,  according  to  Article  63  of  the  Code  Napoleon ; 
and  the  provisions  of  Articles  144  and  following  must  be  complied 
wnth.  If  these  formalities  are  omitted  with  the  express  intention  of 
evading  the  law  the  marriage  is  to  be  pronounced  null.     The  marriage 

1  See  Kent  v.  Burgess,  11  Sim.  361  ;  R.  v.  Brampton,  10  East,  282;  Culling  v. 
Culling  [1896],  Prob.  116;  Davis  v.  Davis,  1  Abb.  N.  C.  140;  Tbillips  o.  Gregg,  10 
Watts,  158.  — Ei). 

'^  2  Sw.  and  Tr.  67,  s.  c.  —  T.d. 


SECT.  III.]  SIMONIX    V.    MALLAC.  51 

in  question  was  celebrated  without  the  parties  having  obtained  or 
sought  the  consent  of  their  parents,  and  without  having  l)een  preceded 
in  France  by  the  prescribed  publication.  The  parties  went  to  England 
onl}-  for  the  moment,  and  returned  to  France  directly  after  the  cere- 
mony ;  and  they  acted  thus  with  the  formal  intention  of  evading  the 
prescriptions  of  the  French  law.  The  marriage  has  not  been  consum- 
mated. On  these  grounds  the  Tribunal  declares  the  pretended  mar- 
riage null. 

The  important  provisions  of  the  Code  Napoleon  (Articles  148,  151- 
154,  183)  are  as  follows. 

Xo  man  under  twent3'-five  and  no  woman  under  twenty-one  can  con- 
tract a  valid  marriage  without  the  parents'  consent.  Persons  who 
have  passed  these  ages  respectively  must  before  marrying  ask  advice 
of  their  parents  by  an  acte  respectuexix  et  formtl.  If  the  man  is  un- 
der thirty-  or  the  woman  under  twent3--five,  this  acte  must  be  repeated 
each  month  for  three  months ;  and  at  the  end  of  the  fourth  month  the 
marriage  may  take  place.  If  the  parties  are  above  these  ages  respect- 
ively the  acte  need  not  be  repeated,  and  the  marriage  may  take  place  at 
the  end  of  a  month.  Parents  whose  consent  has  not  been  asked  cannot 
impeach  a  marriage  after  the}'  have  expressly  or  tacitl}-  approved  it,  or 
after  a  year  has  passed  since  they  knew  of  it.  A  party  to  the  marriage 
cannot  impeach  it  if  a  year  has  passed  since  he  reached  the  age  of  full 
consent. 

The  petitioner  came  to  England  in  1857  and  has  since  that  time 
resided  here  with  no  intention  to  return  to  France.^ 

Dr.  Phillimore  and  Di:  Sioahey.,  for  the  petitioner.  We  contend 
that  the  incapacit}'  to  contract  a  marriage  follows  the  individual  everv- 
where  as  a  qualltas  personalis  ;  and  this  view  is  uplield  by  a  most 
important  decision  recently  pronounced  on  the  subject. 

[The  Judge  Okdinary.  —  The  application  of  Brook  v.  Brook  to  this 
case  is,  that  the  marriage  is  void  in  France,  not  that  it  is  void  in  Eng- 
land. Keating,  J.  —  Brook  /-.  Brook  does  not  decide  that  the  mar- 
riage in  question  was  bad  at  Altona.  The  Judge  Okdinauv.  — Could 
a  foreigner,  by  the  laws  of  his  own  country  a  minor  till  twentv-five, 
plead  in  infancy  here  to  a  bond  executed  at  twenty-two?] 

I  apprehend  not. 

[The  Judge  Oudixauy.  — Then,  could  a  foreigner,  capabl(>  of  marr\- 
ing  by  his  municipal  law,  l)ut  incapal)le  by  ours,  contract  a  valid  mar- 
riage here?] 

Sir  Cuesswell  Cuesswell,  Jud(;e  (Jkdinakv.  This  state  of  facts 
presented  two  very  important  questions  for  om-  consideration:  first. 
whether  this  court  has  any  jurisdiction  over  Leon  Mallac,  the  p;irL\ 
cited;  and,  secondly,  assuming  that  such  jurisdiction  exists,  whether, 
according  to  tlie  law  of  this  country,  the  marriage  solemnized  is  to 
be  held  null  and  void.      We  had  the  advantage  of  a  learned  argumeiil 

1  This  statement  of  facts  is  condenfled  from  that  of  tlic  Reporter.  Part  of  tlie 
■argmneiit  of  (•umiscl   i>  oinitti'il.  —  I^n. 


52  SIMONIN    V.    MALLAC,  [CHAP.  VI. 

on  behalf  of  the  petitioner,  and  feel  that  the  responsibility  cast  upon 
the   court  is  greatly  increased   by  the  want   of   any  such  assistance 
on  the  other  side.     The  argument  in  favor  of  the  jurisdiction  of  the 
court  was  rested  on  the  ground,  first,   that    the    contract  was   made 
in  England,  and  that  the  court  is  called   upon  for  its  decision   with 
regard°to  the  effect  of  a  civil  and  religious  English  contract,  celebrated 
under  an  English  statute  (4  Geo.  IV.  c.  76),  and  that  the  tribunals 
loci  contractus  have,  generally  speaking,  cognizance  of  the  contract ; 
secondly,  that  England  is  now  the  domicil  of  the  petitioner,  but  that 
assertion  begs  the  main  question  in  dispute,  for  if  the   marriage  be 
valid  it  is  not  her  domicil ;  thirdly,  that  the  respondent  was  personally 
served  with  the  citation  and  petition,  and  has  not  appeared  to  contest 
the  jurisdiction  of  the  court.     The  42d  section  of  tlie  statute  20  &  21 
Vict.  c.  85,  by  which  this  court  was  establislied,  removes  all  objection 
on  the  ground^  of  the  citation  having  been  served  without  Her  Majesty's 
dominions,  but,  in  our  opinion,  would  not  of  itself  suffice  to  give  to 
the  court  authority  to  decide  upon  the  rights  of  a  party  not  otherwise 
sul)ject  to  its  jurisdiction.     This  question,  therefore,  depends  upon  the 
first  proposition,  that  the  parties  by  professing  to  enter  into  a  contract 
in  England,  mutually  gave  to  each  other  the  right  to  have  the  force  and 
effect  of  that  contract  determined  by  an  EngUsh  tribunal.      Huber, 
65.    tit.    1,   De  Foro  Competente,   §   5,   says,    "  Sequitur    causa    fori 
tertia  quam  rem  gestam  esse  diximus  eamque  vel  e  contractu  vel  ex 
delicto  admisso."     In   another  place  he  adds,   "  Si  reus  illic  haberi 
posset " ;  and    the    same    doctrine    is    to    be    found    in    John    Voet, 
Boullenois,  Donellus,  and  Story.     The  Common  Law  Procedure  Act 
(15  &  16  Vict.  c.   76),  §   19,  which  allows  a  writ  of  summons  to  be 
issued  against  a  person  residing  out  of  the  jurisdiction,  and  not  being 
a  British  subject,  and  proceedings  to  be  had  thereon,  notice  of  such 
writ  having  been  served  on  the  party,  appears  to  have  been  founded 
on  this  principle  ;  and  section  42  of  the  20  &  21  Vict.  c.  85,  already 
adverted  to,  removes  all  diflflculty  as  to  service  of  process,  although  the 
party  cited  is  a  foreigner  by  origin  and  domicil.     There  is   nothing 
contrary  to  natural  justice  in  calling  upon  him   to  have  the  validity 
or  invalidity  of  a  supposed  contract  ascertained  and  determined  by  the 
tribunal   of    the   country    where   it   was    entered   into    by   him ;    for, 
according  to  Lord  Stowell,  in  Dalrymple  v.  Dalrymple,  2  Hag.  Cons.  61, 
''  It  is  an  indisputable  rule  of  law,  as  exercised  in  all  civilized  countries, 
that  a  man  who  contracts  in  a  country  engages  for  a  competent  knowledge 
of  the  law  of  contracts  in  that  country  ;   if  he  rashly  presumes  to 
contract  without   such  knowledge,   he   must  take  the  inconveniences 
resulting  from  such  ignorance  upon  himself,  and  not  attempt  to  throw 
them  upon  the  other   party."     We  think,    therefore,   that   this   court 
is  competent  to  entertain  the  present  suit,  and   to  adjudicate   upon 
the  petition  presented  by  the  party  caUing  herself  Valerie  Simonin, 
which  prays  the  court  to  decree  that  the  pretended  form  or  ceremony 
of  marriage  had  between  the  petitioner  and  Leon  Mallac  was  and  is 


SECT.  III.]  SIMONIN    V.    MALLAC.  53 

void  and  of  no  effect  in  law  whatsoever.     This,  which  is  the  second 
question  to  be  determined,   is,  no  doubt,  of  the  gravest  importance, 
and,  as  far  as  this  court  has  been  able  to  ascertain,  pri77ue  i77i2)resfiioms. 
No  decision  on  the  point  was  cited  to  us  by  the  learned  advocate  for 
the  petitioner,  and  we  have  not  had  the  benefit  of  any  other  diligence 
save  our  own,  in  the  attempt  to  discover  precedents  for  our  guidance. 
The    question    is    this,  —  Whether   a    marriage    duly    solemnized    in 
England,  in  the  manner  prescribed  by  the  law  of  England,   between 
parties  of  full  age  and  capable  of  contracting  according  to  that  law, 
is  to  be  held  null  and  void,  because  the  parties  to  that  marriage  being 
foreigners  contracted  it  in  England  in  order  to  evade  the  laws  of  the 
country  to  which  they  belonged,  and  in  which  they  were  domiciled? 
It  may,   indeed,   be  doubted  whether  the   evidence  of  the  petitioner 
established  the  intention  to  evade  the  law  of  France,  and  whether  that 
which  the  witness  Auguste  Noel  called  a  Statute  of  Limitations,  viz., 
section  183  of  the  Code  Napoleon,  did  or  did  not  operate  to  bar  the 
right  of  the    petitioner  to   institute   this  proceeding   four  years   after 
the  marriage  was  solemnized.     But  we  pass  over  those  points  in  order 
to  deal  with  the  broad  and  important  question  tiiat  has  been  raised. 
It  was  contended  that  the  parties  being  French,  the  law  of  that  country 
affixed  to  them  an  incapacity  to  contract  marriage  without  attending 
to  the  formalities  prescribed,  and  that  such  incapacity  was  a  personal 
status   which    travelled    with   them   everywhere,    and    rendered   them 
incapable   of   making    a   valid   contract   in  any  other  country.     But, 
according  to  the  evidence,  such  incapacity  to  contract  was  not  absolute, 
but  conditional  only;  and  a  contract  made  by  them  would   be  good 
unless  they  came  here  with  the  intention  to  evade  the  law  of  France. 
So,  a  contract  made  here  would  be  unimpeachable  if  ratified  by  the 
subsequent  assent  of  the  parents,  and  a  contract  made,  here  would 
be  perfectly  valid,  unless  impeached  within  a  certain  time  ;  and,  there- 
fore,  a  marriage   contracted   between   a   man   and  woman  of  the  re- 
spective ages  of  twenty-five  and  twenty-one,  without  attending  to  the 
formalities'  prescribed  by  the  Code  Napoleon,  151,  152,  153,  and  154, 
may  receive  a  different  consideration  from  one  absolutely  prohibited  by 
Article  148,  by  parties  respectively  under  those  ages.     But  taking  the 
decree  of  the  French  court   in  the    suit   there  instituted  as  evidence 
that,  by  the  law  of  France,  this  marriage  was  void,  we  again  come 
to  the  broad  question,  —  is  it  to  be  judged  of  here  by  the  law  of  England, 
or   the   law    of    France?      In    general,    the    personal    competency   or 
incompetency  of  individuals  to  contract  has  been  held  to  depend  upon 
the  law  of  the  place  where  the  contract  is  made.     But  it  was  and  is 
contended  that  such  rule  does  not   exten.l  to  contracts  of  marriage, 
but  that  parties  are,  with  reference  to  thorn,  bound  by  the  law  of  their 
domicil.     Tliis  question,  of  so  much  importance  in  all  civilized  com- 
munities, has  been  largely  discussed  by  jurists  of  all  nations ;   but  they 
all  apply  their  observations  to  controversies  arising,  not  in  the  countries 
where  the  marriage  was  celebrated,  but  in  other  countries   where   it 


54  SIMONIN    V.    MALLAC.      -  [CHAP.  VL 

is  brought  in  dispute,  and  of  which  the  parties  were  domiciled  subjects. 
That  a  marriage,  good  b}-  the  law  of  the  country  where  solemnized, 
should  be  held  good  in  all  other  countries,  and  the  converse,  is  strongh^ 
maintained,  as  a  general  rule,  by  nearly  all  writers  on  international 
law.  But,  according  to  the  same  authorities,  it  is  subject  to  some  few 
exceptions,  viz.,  marriages  involving  polygamy  and  incest;  those 
positively  prohibited  by  the  public  law  of  a  country  from  motives  of 
policy,  e.  (/.,  by  our  Royal  Marriage  Act.  Story,  in  his  Conflict  of 
Laws,  §  113,  a,  mentions,  as  a  third  exception,  "Those  celebrated 
in  foreign  countries  by  subjects  entitling  themselves,  under  special 
circumstances,  to  the  benefit  of  the  laws  of  their  own  country."  In 
several  instances,  learned  judges  presiding  in  our  ecclesiastical  courts 
have  stated  the  general  rule  without  mentioning  the  exceptions,  whence 
it  has  sometimes  been  contended  that  they  meant  to  controvert  their 
existence.  But  inasmuch  as  none  of  the  cases  referred  to  fell  within 
the  exceptions  above  mentioned,  it  cannot  justly  be  inferred  that  those 
learned  persons  intended  tlieir  words  to  bear  so  extensive  a  meaning ; 
for  they  would  hardly  have  repudiated  the  doctrine  of  several  learned 
writers,  whose  works  are  always  received  as  worth}'  of  great  attention, 
without  condescending  to  advert  to  it  in  terras,  and  assigning  some 
reasons  for  dissenting  from  it.  In  addition  to  the  writings  of  jurists 
as  to  the  existence  of  such  a  general  rule,  by  the  law  of  all  civilized 
nations,  we  find  that  in  several  cases  it  has  been  adopted  by  the  courts 
of  this  country  as  the  ground  of  their  decisions. 

I  believe  the  earliest  of  them  was  Scrimshire  v.  Scrimshire,  decided 
by  Sir  E.  Simpson  in  1752,  and  reported  2  Hag.  Cons.  395  ;  for  that 
learned  judge  then  said  it  was  a  case  of  2)7-im':e  impress  lords.  The 
judgment  is  of  great  value,  from  the  full  manner  in  which  he  dealt  with 
the  principles  on  which  the  court  should  proceed  in  adjudicating  upon 
such  cases.  The  parties  were  British  subjects  domiciled  in  England. 
It  was  a  suit  for  restitution  of  conjugal  riglits.  The  respondent  pleaded 
that  the  marriage  was  celebrated  in  France  ;  set  forth  circumstances 
under  which  that  celebration  took  place,  and  averred  that,  by  the  laws 
of  P'rance,  the  marriage  was  null  and  void.  Sir  E.  Simpson,  after 
disposing  of  one  or  two  preliminar\'  points,  observed:  "The  general 
questions  are  two  :  first,  whether  tliere  be  full  and  legal  proof  that  the 
parties  did  mutuall}',  freely,  and  voluntarily  celebrate  marriage  in  such 
manner  as  the  laws  of  this  countr}'  would  deem  to  constitute  marriage, 
if  there  was  nothing  else  in  the  case  but  a  question  on  the  fact  of  the 
marriage.  Secondly,  whether,  if  the  fact  of  the  marriage  should  be 
proved,  this  marriage  can,  b\'  the  laws  of  this  countrv,  be  effectuated 
and  pronounced  to  be  good,  being  solemnized  in  France,  where  b}' 
law  it  is  null  and  void  to  all  intents  and  purposes?  For  it  seemed  to 
be  admitted  in  the  argument  that  the  law  was  so,  but  insisted  that  it 
ought  not  to  be  a  rule  of  determination  in  this  cause."  The  first  point 
lie  determined  in  the  aflirmative,  and  would  have  held  the  marriage 
valid  had  it  been  agreeable  to  the  laws  of  France,  where  it  was  cele- 


SECT.  III.]  SIMONIX    V.    MALL.VC.  55 

brated.     "  But,"'  he  proceeds,  ''  the  great  difficulty  arises  on  the  second 
question,  from   the  marriage  being  celebrated  in  France,  where  such 
marriage  is  null  by  the  law  of  France,"     He  afterwards  says,  '•  The 
only  question  before  me  is,  whether  this  is  a  good  or  bad   marriage 
by  the  laws  of  England,  and  I  am  inclined  to  think  that  it  is  not  good. 
On  this  point,  I  apprehend  it  is  the  law  of  this  country  to  take  notice 
of  the  laws  of   France  or  any  foreign  country,  in  determining  upon 
marriages  of  liiis  kind.     The  question  being  in  substance  this,  whether, 
bv  the  law  of  this  country,  marriage  contracts  are  not  to  be  deemed 
good  or  bad  according  to  the  laws  of  the  country  in  which  the}'  are 
formed,  and  whether  they  are  not  to  be  construed  according  to  that 
law."     He  then  quoted  several  passages  from  Sanchez,   J.  Voet,  and 
others,    showing    that    if    subjects    of    a    country    where    clandestine 
marriages  are  prohibited  go  to  another  country,  where  there  is  no  such 
prohibition,  and  celebrate  a  clandestine  marriage  there,  it  is  to  be  held 
good;  and  the  converse  is  established  by  the  same  authorities.     He 
sums  up  the  effect  of  the  books  referred  to  in  these  words  :  '•  These 
autliorities  fully  show  that  all  contracts  are  to  be  considered  according 
to  the  laws  of  the  country  where  they  are  made.     And  the  practice 
of  civilized  countries  has  been  conformable  to  this  doctrine,  and,  by  the 
common  consent  of  nations,  has  been  so  received."     In  many  instances, 
judges  have  used  similar  language  with  reference  to  cases  where  the 
form  and  ceremonial  of  the  marriage  were  alone  in   question;    and 
it  can  hardly,  in  such  cases,   be  presumed  that  they  intended  their 
words  to  bear  a  more  extensive   sense  than  was  necessary  for  the 
question  then  before  them  ;  but  the  sense  ascribed  by  Sir  E,  Simpson 
to  these  passages  extends  to  the  clandestine  character  of  the  marriage, 
and  not  merely  to  the  form  of  the  contract  or  ceremonial.     He  then 
explains  in  the  clearest  manner  the   principle  on  which    courts    have 
proceeded  in  holding  that  marriages  are  to  be  considered  according 
to  the  law  of  the  country  in  which  they  are  celebrated  :   "  All  nations 
allow  marriage  contracts  ;  they  are  Juris  gentium,   and  the  subjects 
of  all  nations  are  equally  concerned  in  them;  and  from   the  infinite 
mischief  and  confusion  which  must  necessarily  arise  to  the   subjects 
of  all  nations  with  respect  to  legitimacy,  successions,  and  other  rights, 
if  the  respective  laws  of  different  countries  were  only  to  be  observed  as 
to   marriages  contracted   by  the   subjects  of  those  countries  abroad, 
all  nations  have  consented,  or  must  be  presumed  to  consent,  for  the 
common  benefit  and  advantage,  tliat  such  marriages  sliould  be  good 
or  not  according  to  the  laws  of  the  country  where  they  are  made. 
It  is  of  equal  consequence  to  all  that  one  rule  in  these  cases  should  be 
observed  by  all  countries  —  that  is,'  the  law  where  the  contract  is  made, 
li^-^b.serving  this  law,  no  inconvenience  can  arise  ;  but  infinite  mis- 
ciiiSwill  ensue  if  it  is  not."     The  same  rule  was  recognized  and  made 
the  ground  of  the  judgment  of  Sir  W.  Wynne  in  Middlcton  r.  Janverin, 
2  \ln</.  Cons.  437;  nor  is  their  reasoning  weakened  by  the  fact  that 
ceitaiii  exceptions  out  of  that  rule  have  been  generally  recognized, 


56  SIMONIN    V.    MALL  AC.  [CHAP.  VI. 

viz.,  where  marriages  deemed  contrar}-  to  the  law  of  religion  and 
morality,  and  contrary  to  the  settled  policy  of  a  nation,  have  been 
contracted  abroad,  and  held  void  in  the  country  of  which  the  parties 
wei'e  domiciled  subjects,  and  where  such  a  marriage  would  not  be 
allowed.  It  is  very  remarkable  that  neither  in  the  writings  of  jurists, 
nor  in  the  arguments  of  counsel,  nor  in  the  judgments  delivered  in 
courts  of  justice,  is  an}'  case  quoted  or  suggestion  offered  to  establish 
the  proposition  that  the  tribunals  of  the  country  where  a  marriage  has 
been  solemnized  in  conformity  with  the  laws  of  that  country  should 
hold  it  void,  because  the  parties  to  the  contract  were  the  domiciled 
subjects  of  another  country  where  such  a  marriage  would  not  be 
allowed.  No  such  argument  has  been  advanced,  even  in  the  case  of 
marriages  deemed  to  be  incestuous.  There  is  a  passage  in  Huber, 
Praelectiones  Juris  Civilis,  lib.  1,  tit.  3,  'De  Conflictu  Legum,'  on  this 
subject  which  ought  to  be  noticed.  After  discussing  contracts  made 
in  foreign  countries,  in  section  8  he  proceeds  :  "  Matrimonium  pertinet 
etiam  ad  has  regulas  si  licitum  est  eo  loco  ubi  contractum  et  celebratum 
est  ubique  validum  erit  effecturaque  habebit  sub  eadem  exceptione  pre- 
judicii  aliis  non  creandi ;  cui  licet  addere  si  exempli  nimis  sit  abomi- 
nandi  ut  si  incestura  juris  gentium  in  secundo  gradu  contingent  alicubi 
esse  permissum  quod  vix  est  ut  usu  venire  possit."  And  he  proceeds 
to  sa}-,  that  if  parties  go  to  a  country  where  such  a  marriage  is  tolerated, 
and  celebrate  it  there,  and  return  to  their  own  countrv,  it  will  not  be 
recognized  :  "  Quia  sic  jus  nostrum  pessimis  exemplis  eluderetur  eoque 
pertinet  hffic  observatio.  Saepe  fit  ut  adolescentes  sub  curatoribus 
ageutes  furtivos  amores  nuptiis  conglutinare  cupientes  abeant  in 
Frisiam  Orientalem  aliave  loca  in  quibus  curatorum  consensus  ad 
matrimonium  non  requiritur  juxta  leges  Romanas,  qua?  apud  nos  hac 
parte  cessant,  celebrant  ibi  matrimonium  et  mox  redeunt  in  patriam. 
Ego  ita  existimo  hanc  rem  manifesto  pertinere  ad  eversionem  juris 
nostri ;  ac  ideo  non  esse  magistratus  hie  obligatos  e  jure  gentium  ejus- 
modi  nuptias  agnoscere  et  ratas  habere.  Multoque  magis  statuendum 
est  eos  contra  jus  gentium  facere  videri  qui  civibus  alieni  imperii  sua 
facilitate  jus  patriis  legibus  contrarium  scientes  volentes  impertiuntu." 
Now  this  passage  is  remarkable.  Huber  discusses  the  two  excep- 
tions out  of  the  general  rule  that  marriages  good  where  celebrated,  are, 
by  the  law  of  nations,  to  be  acknowledged  everywhere,  incestuous 
marriages  and  marriages  of  minors  without  consent  curatorum.,  cele- 
brated in  countries  whither  they  have  gone  for  the  purpose  of  evading 
the  laws  of  the  country  of  their  domicil ;  and  he  does  not  suggest  the 
slightest  doubt  as  to  either  class  being  held  good  in  the  country  where 
solemnized ;  but,  with  reference  to  the  second  class,  vindicates  the 
country  of  the  domicil  against  the  charge  of  violating  the  law  of  nations 
by  refusing  to  recognize  them.  Story  is,  I  believe,  the  only  writer  who 
has  expressed  an  opinion  on  this  point ;  and  he,  after  mentioning  that 
France  has  ventured  on  the  doctrine  that  the  marriages  of  Frenchmen 
under  such  circumstances  shall  not  be  deemed  valid,  adds,  "  There  can 


SECT.  III.]  SIMONIX    V.    MALLAC.  57 

be  little  doubt  that  foreign  countries  where  such  marriages  are  cele- 
brated, will  follow  their  own  law,  and  disregard  that  of  France," 
Conflict  of  Laws,  §  90.  The  question  appears  to  have  occurred  to 
Lord  Meadowbank,  a  judge  of  great  eminence  ;  for  in  the  note  of  his 
opinion  annexed  to  his  interlocutor  of  remit,  in  the  case  of  Gordon  v. 
Nye,  Ferg.  Cons.  Rep.  361,  he  puts  this  question,  "  Or  would  a 
marriage  here  be  declared  void  because  the  parties  were  domiciled  in 
England,  and  minors  when  they  married  here,  and,  of  course,  inca- 
pable by  the  law  of  that  country  of  contracting  marriage  ?  '*  —  plainly 
intimating  his  own  opinion  that  they  would  not.  In  this  countr}' 
marriages  have  been  solemnly  recognized  as  valid,  although  celebrated 
in  Scotland  between  English  domiciled  minors,  without  the  consent 
required  by  the  Marriage  Act,  26  Geo.  II.,  to  which  countiy  they  had 
resorted  for  the  purpose  of  evading  the  operation  of  that  act.  I  allude 
to  the  case  of  Compton  r.  Bearcroft.  In  a  note  to  the  report  of 
]\Iiddleton  v.  Janverin,  2  Hag.  Cons.  444,  the  libel  in  that  case  is  set 
out,  in  which  "the  minority  of  the  lady,  the  want  of  consent,  the 
English  domicil,  and  the  Marriage  Act  were  pleaded,  and  it  was  alleged 
that  the  parties  were  married  in  Dumfries  merely  to  evade  the  laws  of 
this  country,  and  returned  to  J^ngland  the  same  day."  The  prayer  was, 
that  the  marriage  might  he  declared  null  and  void,  pursuant  to  the  said 
act  for  clandestine  marriages.  The  libel  was  rejected.  The  court, 
therefore,  must  have  held,  that  if  all  the  matters  alleged  were  proved 
they  would  not  supply  a  ground  for  declaring  the  marriage  null. 

It  has  been  said  that  the  parties  did  not  in  that  case  evade  the 
Marriage  Act,  for  that  it  contains  an  express  exception  of  marriages 
solemnized  in  Scotland.  It  is  true  that  marriages  of  minors  in  Scotland, 
without  consent,  are  not  prohibited  by  the  Marriage  Act,  and  therefore 
they  cannot  be  said  to  be  contrary  to  the  law  of  England.  But  there 
can  be  no  doubt  that  the  parties  went  to  Scotland  to  evade  the 
operation  of  the  law  which  was  established  in  England.  Compton  v. 
Bearcroft  is,  therefore,  an  authority  to  this  extent,  that  a  marriage 
contracted  by  P^nglish  domiciled  subjects  abroad,  where  it  is  not 
prohibited  by  English  law,  will  not  be  held  bad  because  the  parties 
have  gone  thither  to  evade  the  necessity  of  complying  with  certain 
conditions  that  would  have  been  imposed  upon  them  in  England.  Tlie 
P>ench  tribunal  in  this  case  appears  to  have  held  the  marriage  null  and 
void,  not  because  it  was  absolutel}'  prohibited  by  the  law  of  France, 
but  because  the  parties  contracted  it  in  England  with  the  formal 
intention  of  evading  the  prescriptions  of  the  French  law. 

Every  nation  has  a  right  to  impose  on  its  own  subjects  restrictions 
and  prohibitions  as  to  entering  into  marriage  contracts,  either  within 
or  without  its  own  territories ;  and  if  its  subjects  sustain  hardships 
in  consequence  of  those  restrictions  thfiir  own  nation  only  must  bear 
the  blame.  But  what  riglit  has  one  independent  nation  to  call  ui^on  any 
other  nation,  equally  independent,  to  surrender  its  own  laws  in  order 
to  give  effect  to  such  restrictions  and  pr()liil)itions?     If  there  be  any 


58  SIMONIN    V.    MALLAC.  [cHAP.  VI. 

such  right  it  must  be  found  in  the  law  of  nations,  that  law  "  to  which 
all  nations  have  consented  or  to  which  the}'  must  be  presumed  to 
consent,  for  the  common  benefit  and  advantage."  Which  would  be 
for  the  common  benefit  and  advantage  in  such  cases  as  the  present,  the 
observance  of  the  law  of  the  country-  where  the  marriage  is  celebrated, 
or  of  a  foreign  countr}'?  Parties  contracting  in  any  country  are  to  be 
assumed  to  know,  or  to  take  the  responsibility  of  not  knowing,  the  law 
of  that  countr\-.  Now,  the  law  of  France  is  equally  stringent  whether 
both  parties  are  French,  or  one  only.  Assume,  then,  that  a  French 
subject  comes  to  England,  and  there  marries  without  consent  a  subject 
of  another  foreign  country,  by  the  laws  of  which  such  a  marriage  would 
be  valid,  —  which  law  is  to  prevail?  To  which  country  is  an  P^nglish 
tribunal  to  pay  the  compliment  of  adopting  its  law?  As  far  as  the  law 
of  nations  is  concerned,  each  must  have  an  equal  right  to  claim  respect 
for  its  laws.  Both  cannot  be  observed.  Would  it  not,  then,  be  more 
just,  and  therefore  more  for  the  interest  of  all,  that  the  law  of  that 
country  should  prevail  which  both  are  presumed  to  know,  and  to  agree 
to  be  l)ound  by?  Again,  assume  that  one  of  the  parties  is  English, 
would  not  an  English  subject  have  as  strong  a  claim  to  the  benefit  of 
English  law  as  a  foreigner  to  the  benefit  of  foreign  law?  But  it  ma}' 
be  said  that,  in  the  case  now  before  the  court,  both  parties  are  French, 
and  therefore  no  such  difficulty  can  arise.  Tliat  is  true  ;  but  if  once 
the  principle  of  surrendering  our  own  law  to  that  of  a  foreign  country 
is  recognized,  it  must  be  followed  out  to  all  its  consequences.  The 
cases  put  are,  therefore,  a  fair  test  as  to  the  possibility  of  maintaining 
that,  by  an}'  comitas  or  jus  gentium,  this  court  is  bound  to  adopt  the 
law  of  France  as  its  guide.  Huber,  indeed,  in  the  passage  cited,  after 
vindicating  the  refusal  to  acknowledge  a  marriage  solemnized  abroad 
between  parties  who  have  gone  there  to  evade  the  law  of  their  own 
country,  proceeds:  "  Multoque  magis  statuendum  est  eos  contra  jus 
gentium  facere  videri  qui  civibus  alieni  imperii  sua  facilitate  jus  patriis 
legibus  contrarium  scieides  volentes  impertiuntur." 

It  is  somewhat  difficult  to  ascertain  what  Huber  would  require  to 
be  done  by  foreigners  in  order  that  they  may  be  exempted  from  his 
reproach.  He  assumes  that  they  are  scientes.  Is  it  intended  that  they 
are  to  inquire  and  ascertain  whether  the  law  of  any  foreign  nation  will 
be  evaded  if  the  proposed  marriage  is  solemnized?  Is  the  domicil 
of  the  parties  and  the  law  prevailing  there  to  be  investigated?  Are 
the  parties  to  be  called  upon  to  prove  their  ages,  consent  of  certain 
relations  or  the  non-existence  of  such  relations,  or  that  tiiey  have  not 
come  to  this  country  to  evade  the  laws  of  their  own  ?  Are  the  clergy 
of  this  country  to  be  deemed  ,'^ctentes  that  a  foreign  law  is  about 
to  be  evaded,  unless  they  have  proof  to  the  contrary?  Unless  that 
proposition  can  be  established  the  reproach  of  violating  the  law  of 
nations  cannot  attach  to  this  country  if  such  marriages  are  here  cele- 
brated. The  great  importance  of  having  some  one  certain  rule 
applicable  to  all  cases  —  the  difficulty,   not   to  say  impossibility,  of 


SECT.  III.]  BKOOK    V.    BUOOK.  59 

having  any  rule  applicable  to  all  cases,  save  that  the  law  of  the  countiT 
where  the  marriage  is  solemnized,  shall,  in  that  country  at  least, 
decide  whether  it  is  valid  or  invalid  — the  absence  of  any  judicial 
decision  or  dictum,  or  of  even  any  opposite  opinion  of  any  writer 
of  authority  on  the  law  of  nations,  have  led  us  to  the  conclusion  that  we 
ought  not  to  found  our  judgment  in  this  case  on  any  other  rule  than 
the  law  of  England  as  prevailing  amongst  English  subjects. 

France  may  make  laws  for  her  own  subjects,  and  impose  on  them  all 
the  consequences,  good  or  evil,  that  result  from  those  laws ;  but 
England  also  may  make  laws  for  the  regulation  of  all  matters  within 
her  own  territory.  Either  nation  may  refuse  to  surrender  its  own  laws 
to  those  of  the  other,  and  if  either  is  guilty  of  any  breach  of  the  cotyii- 
tas  or  Jics  geiitium,  that  reproach  should  attach  to  the  nation  whose 
laws  are  least  calculated  to  insure  the  common  benefit  and  advantage 
of  all.     For  these  reasons  we  feel  bound  to  dismiss  this  petition. 

It  may  be  unfortunate  for  the  petitioner  that  she  should  be  held 
to  be  a  wife  in  England  and  not  so  in  France.  If  she  had  remained 
in  her  own  country  she  might  have  enjoyed  there  the  freedom  conferred 
upon  her  by  a  French  tribunal ;  having  elected  England  as  her  resi- 
dence, she  must  be  contented  to  take  English  law  as  she  finds  it, 
and  to  be  treated  as  bound  by  the  contract  which  she  there  made. 
The  novelty  and  importance  of  the  question  has  cast  upon  the  court 
much  anxiety  :  but  from  some  portion  of  it  we  are  i^elieved  by  the 
consideration  tliat  if  our  judgment  is  wrong  it  may  be  corrected  by 
the  hit^hest  tribunal  in  this  country.  Petition  dismissed} 


BROOK   V.   BROOK. 
House  of  Lords.     1861. 

[Reported  9  House  of  Lords  Cases,  193.] 

William  Leigh  Brook,  of  Meltham  Ilall,  in  the  county  of  York, 
married  in  May,  1840,  at  tlie  parish  church  of  Iluddersfield,  in  York- 
shire, Charlotte  Armitage.  There  were  two  children  of  that  marriage, 
Clara  Jane  Brook  and  .Tames  William  Brook.  In  Octo!)er,  1.H47,  INIrs. 
Brook  died.  On  the  7tli  June,  18.00,  William  Leigh  lirook  was  duly, 
according  to  the  laws  of  Denmark,  married  at  the  Lutheran  church  at 
Wandsbeck,  near  Altona,  in  Denmark,  to  Emily  Armitage,  the  lawfid 
sister  of  his  deceased  wife.  At  tlie  time  of  this  Danish  marriage,  Mr. 
Brook  and  Miss  Emily  Armitage  wen;  lawfully  doniicilod  in  England, 
and  had  merely  gone  over  to  Denmark  on  a  temporary  visit.  Tiiere 
were  three  children  of  this  union,  Charles  Armitage  Brook,  Charlotte 
Amelia  Brook,  and  Sarah  Helen  Brook.     On  tlu;  17th  September,  1855, 

1   Arr    ('    r.  (  Miiliiuii,  I  .">7  Mass.  V.'i.  — I'll.. 


60 


BROOK   V.    BROOK.  [CHAP.  VI. 


Mrs.  Emily,  the  second  wife  of  INIr.  Brook,  died  at  Frankfort  of 
cholera,  and  two  days  afterwards  Mr.  Brook  himself  died  of  the  same 
complaint  at  Cologne,  leaving  all  the  five  children  him  surviving. 

Mr.  Brook,  in  the  early  part  of  the  day  on  which  he  died,  executed 
a  will  by  which  he  disposed  of  his  property  among  his  five  children,  and 
appointed  his  brother  Charles  Brook,  and  his  two  brothers-in-law,  John 
and  Edward  Armitage,  his  executors  and  trustees.  In  consequence  of 
the  state  of  his  property  and  of  some  pending  purchases  of  land,  and 
afterwards  on  account  of  the  death  of  the  infant  Charles  Armitage 
Brook,  it  became  necessary  to  institute  an  administration  suit,  and 
a  bill  was  filed  for  this  purpose  in  March,  1856,  which  by  order  of  the 
court  was  amended,  and  in  July,  1856,  a  supplemental  bill  was  filed, 
making  the  Attorney-General  a  party  to  the  suit. 

The  causes  came  on  to  be  heard  in  March,  1857,  before  Vice- 
Chancellor  Stuart,  when  certain  inquiries  were  ordered,  and  in  June, 
1857,  the  chief  clerk  certified  (among  others)  the  facts  above  stated, 
and  the  certificate  raised  the  question  of  the  validity  of  the  marriage 
at  Wandsbeck.  Evidence  was  taken  on  this  subject,  and  several 
declarations  were  made  by  officials  and  by  advocates  in  Holstein,  that 
the  marriage  of  a  widower  with  the  sister  of  his  deceased  wife  was 
perfectly  lawful  and  vaUd  in  Denmark  to  all  intents  and  purposes 
whatever. 

The  cause  coming  on  for  hearing,  on  further  directions,  Vice- 
Chancellor  Stuart  called  in  the  assistance  of  Mr.  Justice  Creswell, 
who,  on  the  4th  December,  1857,  declared  his  opinion  that  the  mar- 
riage at  Wandsbeck  was  by  the  law  of  England  invalid.  Vice-Chan- 
cellor  Stuart  on  the  17th  April,  1858,  pronounced  judgment,  fully 
adopting  this  opinion,  and  decreed  accordingly.  This  appeal  was 
then  brought.^ 

Lord  Campbell,  Lord  Chancellor.  My  Lords,  the  question  which 
your  Lordships  are  called  upon  to  consider  upon  the  present  appeal 
is,  whether  the  marriage  celebrated  on  the  9th  June,  1850,  in  the 
duchy  of  Holstein,  in  the  kingdom  of  Denmark,  between  William 
Leigh  Brook,  a  widower,  and  Emily  Armitage,  the  sister  of  his  de- 
ceased wife,  they  being  British  subjects  then  domiciled  in  England, 
and  contemplating  England  as  their  place  of  matrimonial  residence, 
is  to  be  considered  valid  in  England,  marriage  between  a  widower 
and  the  sister  of  his  deceased  wife  being  permitted  by  the  law  of 
Denmark? 

I  am  of  opinion  that  this  depends  upon  the  question  whether  such 
a  marriage  would  have  been  held  illegal,  and  might  have  been  set 
aside  in  a  suit  commenced  in  England  in  the  lifetime  of  the  parties 
before  the  passing  of  statute  5  &  6  Wm.  IV.  c.  54,  commonly  called 
Lord  L3ndhurst's  Act. 

I  quite  agree  with  what  was  said  by  my  noble  and  learned  friend 
during  the  argument  on  the  Sussex  peerage,  that   this  act  was  not 

^  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  III.]  BROOK    V.    BROOK.  '  61 

brought  in  to  prohibit  a  man  from  marrying  his  former  wife's  sister, 
and  that  it  does  not  render  any  marriage  illegal  in  England  which 
was  not  illegal  before.  The  object  of  the  second  section  was  to 
remed}'  a  defect  in  our  procedure,  according  to  which  marriages  illegal, 
as  being  within  the  prohibited  degrees  either  of  affinit}'  or  consan- 
suiuit}',  however  contrar}*  to  law,  human  and  divine,  and  however 
shocking  to  the  universal  feelings  of  Christians,  could  not  be  questioned 
after  the  death  of  either  party.  But  no  marriage  that  was  before 
lawful  was  prohibited  by  the  act ;  and  I  am  of  opinion  that  no 
marriage  can  now  be  considered  void  under  it,  which,  before  the  act, 
might  not,  in  the  lifetime  of  the  parties,  have  been  avoided  and  set 
aside  as  illegal. 

There  can  be  no  doubt  that  before  Lord  Lyndhurst's  Act  passed, 
a  marriage  between  a  widower  and  the  sister  of  a  deceased  wife,  if 
celebrated  in  England,  was  unlawful,  and  in  the  lifetime  of  the  parties 
could  have  been  annulled.  Such  a  marriage  was  expressly  prohibited 
by  the  Legislature  of  this  country,  and  was  prohibited  expressly  on  the 
ground  that  it  was  "  contrary  to  God's  law."  Sitting  here,  judicially, 
we  are  not  at  liberty  to  consider  whether  such  a  marriage  is  or  is  not 
"  contrary  to  God's  law,"  nor  whether  it  is  expedient  or  inexpedient. 

Before  the  Reformation  the  degrees  of  relationship  by  consanguinity 
and  affinity,  within  which  marriage  was  forbidden,  were  almost  indeli- 
nitely  multiplied  ;  but  the  prohibition  might  have  been  disi)cnsed  with 
bv  the  Pope,  or  those  who  represented  him.  At  the  Reformation,  the 
prohibited  degrees  were  confined  within  the  limits  supposed  to  be 
expressly  defined  by  Holy  Scripture,  and  all  dispensations  were 
abolished.  The  prohibited  degrees  were  those  within  which  inter- 
course between  the  sexes  was  supposed  to  be  forbidden  as  incestuous, 
and  no  distinction  was  made  between  relationship  by  blood  or  by 
affinity.  The  marriage  of  a  man  with  a  sister  of  his  deceased  wife 
is  expressly  within  this  category.  Hill  r.  Good,  Vaugh.  302,  and 
Reo-.  V.  Chadwick,  11  Q.  B.  173,  205,  are  solemn  decisions  that  such 
a  marriage  was  illegal ;  and  if  celebrated  in  England  such  a  marriage 
unquestionabl}'  would  now  be  void. 

Indeed,  this  is  not  denied  on  the  part  of  the  appellants.  They  rest 
their  case  entirely  upon  the  fact  that  the  marriage  was  celebrated 
in  a  foreign  country,  where  the  marriage  of  a  man  with  the  sister 
of  his  deceased  wife  is  permitted. 

There  can  be  no  doubt  of  the  general  rule,  that  "  a  foreign  marriage, 
valid  according  to  the  law  of  a  country  where  it  is  celebrated,  is  good 
evervwhere."  But  while  the  forms  of  entering  into  the  contract  of 
marriage  are  to  be  regulated  by  the  /ex  loci  coiitractxH,  the  law  of  the 
country  in  which  it  is  celebrated,  the  essentials  of  the  contract  depend 
upon  the  lex  domicilii,  the  law  of  the  country  in  which  the  parties  are 
domiciled  at  the  time  of  the  marriage,  and  in  which  the  matrimonial 
residence  is  contemplated.  Although  the  forms  of  celebrating  the 
foreign   marriage  n)ay  be   different  from    tliose  required   by   the  law 


62  BROOK  V.    BROOK.  [CHAP.  VI. 

of  the  country  of  domicil,  the  marriage  may  be  good  everywhere. 
But  if  the  contract  of  marriage  is  such,  in  essentials,  as  to  be  contrary 
to  the  law  of  the  country  of  domicil,  and  it  is  declared  void  by  that 
law,  it  is  to  be  regarded  as  void  in  the  country  of  domicil,  though 
not  contrar}'  to  the  law  of  the  country  in  which  it  was  celebrated. 

This  qualification  upon  the  rule  that  "  a  marriage  valid  where  cele- 
brated is  good  everywhere,"  is  to  be  found  in  the  writings  of  many 
eminent  jurists  who  have  discussed  the  subject. 

I  will  give  one  quotation  from  Huberus  de  Conflictu  Legum,  bk.  1, 
tit.  3,  §  2  :  "  Rectores  imperiorum  id  comiter  agunt,  ut  jura  cujusque 
l)opuli  intra  terminos  ejus  exercita,  teneant  ubique  suam  vim,  quatenus 
nihil  potestati  aut  juri  alterius  imperantisejusque  civium  pr^judicetur." 
Then  he  gives  "marriage"  as  the  illustration:  "  Matrimoniura  per- 
tinet  etiam  ad  has  regulas.  Si  licitum  est  eo  loco,  ubi  contrac- 
tum  et  celebratum  est,  ubique  validum  erit,  effectumque  habebit,  sub 
eadem  exceptione,  prejudicii  aliis  non  creandi ;  cui  licet  addere,  si 
exempli  nimis  sit  abominandi ;  ut  si  incestum  juris  gentium  in  secundo 
gradu  contingeret  alicubi  esse  permissum  ;  quod  vix  est  ut  usu  venire 
possit."  Id.  §  8.  The  same  great  jurist  observes:  "Non  ita  praecise 
respiciendus  est  locus  in  quo  contractus  est  initus,  ut  si  partes  alium 
in  contrahendo  locum  respexerint,  ille  non  potius  sit  considerandus. 
Contraxisse  unusquisque  in  eo  loco  intelligitur,  in  quo  ut  solveret  se 
obligavit.  Proinde  et  locus  matrimonii  contracti  non  tam  is  est,  ubi 
contractus  nuptialis  initus  est,  quam  in  quo  contrahentes  matrimonium 
exercere  voluerunt."     Id.  §  10. 

Mr.  Justice  Storj',  in  his  valuable  treatise  on  the  Conflict  of  Laws, 
while  he  admits  it  to  be  the  "rule  that  a  marriage  valid  where  cele- 
brated is  good  everywhere,"  says,  §  113  a,  there  are  exceptions;  those 
of  marriages  involving  polj'gam}'  and  incest,  those  positively  prohibited 
by  the  public  law  of  a  country  from  motives  of  policy,  and  those  cele- 
brated in  foreign  countries  b}'  subjects  entitling  themselves,  under 
special  circumstances,  to  the  benefit  of  the  laws  of  their  own  country, 
he  adds,  §  114,  "in  respect  to  the  first  exception,  that  of  marriages 
involving  polygamy  and  incest,  Christianity  is  understood  to  prohibit 
polj-gamy  and  incest,  and,  therefore,  no  Christian  country  would  recog- 
nize polygam}'^  or  incestuous  marriages  ;  but  when  we  speak  of  incestu- 
ous marriages  care  must  be  taken  to  confine  the  doctrine  to  such  cases 
as  bv  the  general  consent  of  all  Christendom  are  deemed  incestuous." 
The  conclusion  of  this  sentence  was  strongly  relied  upon  by  Sir  Fitz- 
Roy  Kelly,  who  alleged  that  many  in  England  approve  of  marriage 
between  a  widower  and  the  sister  of  his  deceased  wife  ;  and  that  such 
marriages  are  permitted  in  Protestant  States  on  the  Continent  of 
Europe  and  in  most  of  the  States  in  America. 

Sitting  here  as  a  judge  to  declare  and  enforce  the  law  of  England 
as  fixed  by  King,  Lords,  and  Commons,  the  supreme  power  of  this 
realm,  I  do  not  feel  myself  at  liberty  to  form  any  private  opinion  of 
my  own  on  the  subject,  or  to  inquire  into  what  may  be  the  opinioQ 


SECT.  III.]  BROOK    V.    BROOK.  63 

of  the  majorit}-  of  m}-  fellow-citizens  at  home,  or  to  try  to  find  out  the 
opinion  of  all  Christendom.  I  can  as  a  judge  only  look  to  what  was 
the  solemnly  pronounced  opinion  of  the  legislature  when  the  laws 
were  passed  which  I  am  called  upon  to  interpret.  What  means  am 
I  to  resort  to  for  the  purpose  of  ascertaining  the  opinions  of  foreign 
nations?  Is  my  interpretation  of  these  laws  to  vary  with  the  varia- 
tion of  opinion  in  foreign  countries?  Change  of  opinion  on  any  great 
question,  at  home  or  abroad,  may  be  a  good  reason  for  the  legisla- 
ture changing  the  law,  but  can  be  no  reason  for  judges  to  vary  their 
interpretation  of  the  law. 

Indeed,  as  Story  allows  marriages  positively  prohibited  by  the 
public  law  of  a  country,  from  motives  of  policy,  to  form  an  exception 
to  the  general  rule  as  to  the  validity  of  marriage,  he  could  hardly  mean 
his  qualification  to  apply  to  a  country  like  England,  in  which  the 
limits  of  marriages  to  be  considered  incestuous  are  exactly  defined 
b}'  public  law. 

That  the  Parliament  of  England  in  framing  the  prohibited  degrees 
within  which  marriages  were  forbidden,  believed  and  intimated  the 
opinion  that  all  such  marriages  were  incestuous  and  contrary  to  God's 
word  I  cannot  doubt.  All  the  degrees  prohibited  are  brought  into  one 
category,  and  although  marriages  within  those  degrees  may  be  more  or 
less  revolting,  they  are  placed  on  the  same  footing,  and  before  English 
tribunals,  till  the  law  is  altered,  they  are  to  be  treated  alike. 

An  attempt  has  been  made  to  prove  that  a  marriage  between  a  man 
and  the  sister  of  his  deceased  wife  is  declared  by  Lord  Lyndhurst's  Act 
to  be  no  longer  incestuous.  But  the  enactment  relied  upon  applies 
equally  to  all  marriages  within  the  prohibited  degrees  of  affinity,  and 
on  the  same  reasoning  would  give  validity  to  a  marriage  between 
a  step-father  and  his  step-daughter,  or  a  step-son  and  his  step-mother, 
which  would  be  little  less  revolting  than  a  marriage  between  parties 
nearly  related  by  blood. 

The  general  principles  of  jurisprudence  which  I  have  expounded 
have  uniformly  been  acted  upon  by  English  tribunals.  Thus,  in  the 
great  case  of  Hill  v.  Good,  Vaugh.  302,  Lord  Chief  Justice  Vaughan 
and  his  brother  judges  of  the  Court  of  Common  Pleas,  held,  that 
"  When  an  Act  of  Parliament  declares  a  marriage  to  be  against  God's 
law,  it  must  be  admitted  in  all  courts  and  proceedings  of  the  kingdom 
to  be  so." 

In  Harford  v.  Morris,  2  Hagg.  Cons.  423,  434,  the  great  judge 
who  presided  clearly  indicates  his  opinion  that  marriages  celebrated 
abroad  are  only  to  be  held  valid  in  England,  if  they  are  according 
to  the  law  of  the  country  where  they  are  celebrated,  and  if  they  are 
not  contrary  to  the  law  of  England.  He  adds:  "  1  do  not  say  that 
foreign  laws  cannot  be  received  in  this  court  in  cases  where  the 
courts  of  that  coimtry  had  a  jurisdiction.  But  I  deny  the  lex  loci  uni- 
versally to  be  a  foundation  for  the  jurisdiction,  so  as  to  impose  an 
obligation  upon  the  court  to  determine  l)y  those  foreign  laws." 


64  BROOK  V.    BROOK.  [CHAP.  VI. 

I  will  onl}'  give  another  example,  the  case  of  Warrender  v.  War- 
render,  2  Clark  &  F.  488,  in  which  I  had  the  honor  to  be  counsel  at 
your  Lordships'  bar.  Sir  George  AVarrender,  born  and  domiciled  in 
Scotland,  married  an  Englishwoman  in  England  according  to  the  rites 
and  ceremonies  of  the  Church  of  England  ;  but  instead  of  changing 
his  domicil,  he  meant  that  his  matrimonial  residence  should  be  in 
Scotland,  where  he  had  large  landed  estates,  on  which  his  wife's 
jointure  was  charged.  Having  lived  a  short  time  in  Scotland,  they 
separated.  Sir  George,  continuing  domiciled  in  Scotland,  commenced 
a  suit  against  her  in  the  Court  of  Session  for  a  dissolution  of  the 
marriage  on  the  ground  of  adultery  alleged  to  have  been  committed  by 
her  on  the  continent  of  Europe.  It  was  objected  that  this  being 
a  marriage  celebrated  in  England,  a  country  in  which  by  the  then 
existing  law,  marriage  was  indissoluble,  the  Scotch  court  had  no 
jurisdiction  to  dissolve  the  marriage,  and  Lolly's  case  was  relied  upon, 
in  which  a  domiciled  Englishman  having  been  married  in  England,  and 
while  still  domiciled  in  England,  liaving  been  divorced  by  decree  of 
the  Court  of  Session  in  Scotland,  and  having  afterwards  married  a 
second  wife  in  England,  his  first  wife  being  still  alive,  he  was  con- 
victed of  bigamy  in  England,  and  held  by  all  the  judges  to  have  been 
rightly  convicted,  because  the  sentence  of  the  Scotch  court  dissolving 
his  first  marriage  was  a  nullit}^  But  3'our  Lordships  unanimously  held 
that  as  Sir  George  Warrender  at  the  time  of  his  marriage  was  a  domi- 
ciled Scotchman,  and  Scotland  was  to  be  the  conjugal  residence  of  the 
married  couple,  although  the  law  of  England  where  the  marriage  was 
celebrated  regulated  the  ceremonials  of  entering  into  the  contract,  the 
essentials  of  the  contract  were  to  be  regulated  by  the  law  of  Scotland, 
in  which  the  husband  was  domiciled,  and  that  although  by  the  law  of 
Eno-land  marriage  was  indissoluble,  3et  as  bv  the  law  of  Scotland  the 
tie  of  marriage  might  be  judicially  dissolved  for  the  adulter}'  of  the 
wife,  the  suit  was  properly  constituted,  and  the  Court  of  Session  had 
authorit}'  to  dissolve  the  marriage. 

It  is  quite  obvious  that  no  civilized  State  can  allow  its  domiciled 
subjects  or  citizens,  by  making  a  temporary  visit  to  a  foreign  country, 
to  enter  into  a  contract  to  be  performed  in  the  place  of  domicil  if  the 
contract  is  forbidden  by  the  law  of  the  place  of  domicil  as  contrary 
to  religion,  or  moralit}',  or  to  any  of  its  fundamental  institutions. 

A  marriage  between  a  man  and  the  sister  of  his  deceased  wife, 
being  Danish  subjects  domiciled  in  Denmark,  may  be  good  all  over  the 
world,  and  this  might  likewise  be  so  even  if  they  were  native-born 
English  subjects,  who  had  abandoned  their  English  domicil,  and 
were  domiciled  in  Denmark.  But  I  am  by  no  means  prepared  to 
say  that  the  marriage  now  in  question  ought  to  be,  or  would  be,  held 
valid  in  the  Danish  courts,  proof  being  given  that  the  parties  were 
British  subjects  domiciled  in  England  at  the  time  of  the  marriage,  that 
England  was  to  be  their  matrimonial  residence,  and  that  by  the  law  of 
Eno-land  such  a  marriage  is  prohibited  as  being  contrary  to  the  law  of 


SECT.  III.]  BROOK    V.    BKOOK.  65 

God.  The  doctrine  being  established  that  the  incidents  of  the  contract 
of  marriage  celebrated  in  a  foreign  countr}-  are  to  be  determined 
according  to  the  law  of  the  country  in  which  the  parties  are  domiciled 
and  mean  to  reside,  the  consequence  seems  to  follow  that  by  this  law 
must  its  validity  or  invalidity  be  determined. 

Sir  FitzRoy  Kelly  argued  that  we  could  not  hold  this  marriage 
to  be  invalid  without  being  prepared  to  nullify  the  marriages  of  Danish 
subjects  who  contracted  such  a  marriage  in  Denmark  while  domiciled 
in  their  native  country,  if  they  should  con)e  to  reside  in  England. 
But  on  the  principles  which  I  have  laid  down,  such  marriages,  if 
examined,  would  be  held  valid  in  all  English  courts,  as  they  are 
according  to  the  law  of  the  countr}'  in  which  the  parties  were  domiciled 
when  the  marriages  were  celebrated. 

I  ma}'  here  mention  another  argument  of  the  same  sort  brought 
forward  b}-  Sir  FitzRoy  Kelly,  that  our  courts  have  no  jurisdiction  to 
examine  the  validity  of  marriages  celebrated  abroad  according  to  the 
law  of  the  country  of  celebration,  because,  as  he  sa3's,  the  Ecclesiastical 
Courts,  which  had  exclusive  jurisdiction  over  marriage,  must  have 
treated  them  as  valid.  But  I  do  not  see  anything  to  have  prevented 
the  Ecclesiastical  Court  from  examining  and  deciding  this  question- 
Suppose  in  a  probate  suit  the  validity  of  a  marriage  had  been  denied, 
its  validit}'  must  have  been  determined  by  the  Ecclesiastical  Court, 
according  to  the  established  principles  of  jurisprudence,  whether  it  was 
celebrated  at  home  or  abroad. 

Sir  FitzRo}'  Kell}'  further  argued  with  great  force,  that  both  Sir 
Cresswell  Cresswell  and  Vice-Chancellor  Stuart  have  laid  down  that 
Lord  Lyndhurst's  Act  binds  all  English  subjects  wherever  the}-  may 
be,  and  prevents  the  relation  of  husband  and  wife  from  subsisting 
between  any  subjects  of  the  realm  of  p]ngland  within  the  prohibited 
degrees.  I  am  bound  to  say  that  in  ray  opinion  this  is  incorrect,  and 
that  Lord  Lyndhurst's  Act  would  not  affect  the  law  of  marriage  in  an}- 
conquered  colony  in  which  a  different  law  of  marriage  prevailed,  what- 
ever effect  it  might  have  in  any  other  colony.  I  again  repeat  that  it 
was  not  meant  by  Lord  Lyndhurst's  Act  to  introduce  any  new  prohi- 
bition of  marriage  in  any  part  of  the  world.  For  this  reason,  I  do  not 
rely  on  the  Sussex  Peerage  Case  as  an  autliority  in  point,  although  much 
reliance  has  been  placed  upon  it ;  my  opinion  in  this  case  does  not  rest 
on  the  notion  of  any  personal  incapacity  to  contract  such  a  marriage 
being  impressed  by  Lord  Lyndhurst's  Act  on  all  Englishmen,  and 
carried  about  with  them  all  over  the  world ;  but  on  the  ground  of  the 
marriage  l)eing  prohibited  in  England  as  "contrary  to  God's  Law." 

I  will  now  examine  the  authorities  relied  upon  by  the  counsel  for 
the  appellants.  They  bring  forward  notiiing  from  the  writings  of 
jurists  except  the  general  rule,  that  contracts  are  to  be  construed 
according  to  the  lex  loci  contractus^  and  the  saying  of  Story  with  regard 
to  a  marriage  being  contrary  to  the  precepts  of  the  Christian  religion, 
upon  whieii  I  have  already  cnniuu  iiIcm]. 

VOL.  11. —  'i 


66  BKOOK  V.    BROOK.  [CHAP.  VI. 

But  there  are  various  decisions  which  they  bring  forward  as  conchi- 
sive  in  their  favor.  They  begin  with  Complon  v.  Bearcroft,  and  the 
class  of  cases  in  which  it  was  held  that  Gretna  Green  marriages  were 
valid  in  England,  notwithstanding  Lord  Hardwicke's  Marriage  Act, 
26  Geo.  II.  c.  33.  In  observing  upon  them,  I  do  not  lay  any  stress  oa 
the  proviso  in  this  act  that  it  should  not  extend  to  marriages  in  Scot- 
land or  beyond  the  seas  ;  this  being  only  an  intimation  of  what  might 
otherwise  have  been  inferred,  that  its  direct  operation  should  be  con- 
fined to  England,  and  that  marriages  in  Scotland  and  be^'ond  the  seas, 
should  continue  to  be  viewed  according  to  the  law  of  Scotland  and 
countries  beyond  the  seas,  as  if  the  act  had  not  passed.  But  I  do  lay 
verj'  great  stress  on  the  consideration  that  Lord  Hardwicke's  Act  only 
regulated  banns  and  licenses,  and  the  formalities  b}'  which  the  cere- 
mony of  marriage  shall  be  celebrated.  It  does  not  touch  the  essentials 
of  the  contract  or  prohibit  any  marriage  which  was  before  lawful,  or 
render  any  marriage  lawful  which  was  before  prohibited.  The  for- 
malities which  it  requires  could  only  be  observed  in  England,  and  the 
whole  frame  of  it  shows  it  was  only  territorial.  The  nullifjing  clauses 
about  banns  and  licenses  can  only  apply  to  marriages  celebrated  in 
England.  In  this  class  of  cases  the  contested  marriage  could  onlj'  be 
challenged  for  want  of  banns  or  license  in  the  prescribed  form.  These 
formalities  being  observed,  the  marriages  would  all  have  been  unim- 
peachable. But  the  marriage  we  have  to  decide  upon  has  been  declared 
b}''  the  Legislature  to  be  "  contrary  to  God's  law,"  and  on  that  ground 
it  is  absolutely  prohibited.  Here  I  may  properl}'  introduce  the  words 
of  Mr.  Justice  Coleridge  in  Reg.  v.  Chadwick,  11  Q.  B.  238,  ''We  are 
not  on  this  occasion  inquiring  what  God's  law  or  what  the  Levitical 
law  is.  If  the  Parliament  of  that  da}^  [Henry  VIIL]  legislated  on  a 
misinterpretation  of  God's  law  we  are  bound  to  act  upon  the  statute 
which  the^'  have  passed." 

The  appellant's  counsel  next  produced  a  new  authorit}-,  the  very 
learned  and  lucid  judgment  of  Dr.  Radcliff,  in  Steele  v.  Braddell,  Milw. 
Eccl.  1.  The  Irish  statute,  9  Geo.  II.  c.  11,  enacts,  "  that  all  marriages 
and  matrimonial  contracts,  when  either  of  the  parties  is  under  the  age 
of  twenty-one,  had  without  the  consent  of  the  father  or  guardian,  shall 
be  absolutel}'  null  and  void  to  all  intents  and  purposes  ;  and  that  it 
shall  be  lawful  for  the  father  or  guardian  to  commence  a  suit  in  the 
proper  Ecclesiastical  Court  in  order  to  annul  the  marriage."  A  young 
gentleman,  a  native  of  Ireland,  and  domiciled  there,  went  while  a 
minor  into  Scotland,  and  there  married  a  Scottish  3'oung  lad^'  without 
the  consent  of  his  father  or  guardian.  A  suit  was  brought  by  his 
guardian  in  an  Ecclesiastical  Court  in  Ireland,  in  which  Dr.  Radcliflf 
presided,  to  annul  the  marriage  on  the  ground  that  this  statute  created 
a  personal  incapacity  in  minors,  subjects  of  Ireland,  to  contract  mar- 
riage, in  whatever  country,  without  the  consent  of  father  or  guardian. 
But  the  learned  judge  said,  "  I  cannot  find  that  any  Act  of  Parliament 
such  as  this  has  ever  been  extended  to  cases  not  properly  within  it, 


SFXT.  III.]  BROOK    V.    BKOOK.  67 

on  the  principle  that  parties  endeavored  to  evade  it."  And  after 
an  elaborate  view  of  the  authorities  upon  the  subject,  he  decided  that 
both  parties  being  of  the  age  of  consent,  and  the  marriage  being  valid 
b\-  the  law  of  Scotland,  it  could  not  be  impeached  in  the  courts  of  the 
country  in  which  the  husband  was  domiciled,  and  he  dismissed  the  suit. 
But  this  was  a  marriage  between  parties  who,  with  the  consent  of 
parties  and  guardians,  might  have  contracted  a  valid  marriage  accord- 
ing to  the  law  of  the  country  of  the  husband's  domicil,  and  the  mode 
of  celebrating  the  marriage  was  to  be  according  to  the  law  of  the 
country  in  which  it  was  celebrated.  But  if  the  union  between  these 
parties  had  been  prohibited  by  the  law  of  Ireland  as  "  contrary  to  the 
word  of  God,"  undoubtedly  the  marriage  would  have  been  dissolved. 
Dr.  Radcliff  expressly  says,  "It  cannot  be  disputed  that  every  State 
has  the  right  and  the  power  to  enact  that  every  contract  made  by  one 
or  more  of  its  subjects  shall  be  judged  of,  and  its  validity  decided, 
according  to  its  own  enactments  and  not  according  to  the  laws  of  the 
country  wherein  it  was  formed." 

Another  new  case  was  brought  forward,  decided  very  recently  by 
Sir  Cresswell  Cresswell,  Simonin  v.  Mallac,  29  Law  J.  N.  S.  Prob.  97. 
This  was  a  petition  by  Valerie  Simonin  for  a  declaration  of  nullity 
of  marriage.  The  petitioner  alleged  that  a  pretended  ceremony  of 
marriage  was  had  between  the  petitioner  and  Leon  Mallac  of  Paris, 
in  the  parish  church  of  St.  Martin's-in-the-Fields  ;  that  about  two  days 
afterwards  the  parties  returned  to  Paris,  but  did  not  cohabit,  and  the 
marriage  was  never  consummated  ;  that  the  pretended  marriage  was 
in  contradiction  to  aud  in  evasion  of  the  Code  Napoleon  ;  that  the 
parties  were  natives  of  and  domiciled  in  France,  and  that  subsequently 
to  their  return  to  France  the  Civil  Tribunal  of  the  Department  of  the 
Seine  had,  at  the  suit  of  Leon  Mallac,  declared  the  said  pretended 
marriage  to  be  null  and  void.  Leon  Mallac  was  served  at  Naples  with 
a  citation  and  a  copy  of  the  petition,  but  did  not  appear.  Proof  was 
given  of  the  material  allegations  of  the  petition,  and  that  the  parties 
coming  to  London  to  avoid  the  French  law,  which  required  the  consent 
of  parents  or  guardians  to  their  union,  were  married  by  license  in  the 
parish  church  of  St.  Martin's-in-the-Fields.  Sir  Cresswell  Cresswell, 
after  the  case  had  been  learnedly  argued  on  both  sides,  discharged 
the  petition.  But  was  there  anything  here  inconsistent  with  the 
opinion  which  the  same  learned  judge  delivered  as  assessor  to  Vice- 
Chancellor  Stuart  in  Brook  r.  P>rook?  Nothing  whatever;  for  the 
objection  to  the  validity  of  the  marriage  in  England  was  merely  that 
the  forms  prescribed  by  the  Code  Napoloon  for  the  celebration  of 
a  marriage  in  France  had  not  been  observed.  But  there  was  no  law 
of  France,  where  the  parties  were  domiciled,  forbidding  a  conjugal 
union  between  them  ;  and  if  the  proper  forms  of  celebration  had  boon 
observed,  this  marriage  by  the  law  of  France  would  have  been  unim- 
peachable. The  case,  tiiercfore,  comes  into  the  same  category  as 
Compton  V.  Bearcroft  and  Steele  v.  Braddell,  decided  by  Dr.  Radcliff. 


68  BROOK  V.   BROOK.  [CHAP.  VI. 

None  of  these  cases  can  show  the  validity  of  a  marriage  which  the 
law  of  the  domicil  of  the  parties  condemns  as  incestuous,  and  which 
could  not,  by  any  forms  or  consents,  have  been  rendered  valid  in  the 
countr}'  in  which  the  parties  were  domiciled. 

Some  American  decisions,  cited  on  behalf  of  the  appellants,  remain 
to  be  noticed.  In  Greenwood  v.  Curtis,  6  Mass.  358,  the  general 
doctrine  was  acted  upon  that  a  contract,  valid  in  a  foreign  State,  may 
be  enforced  in  a  State  in  which  it  would  not  be  valid,  but  with  this 
important  qualification,  "unless  the  enforcing  of  it  should  hold  out 
a  bad  example  to  the  citizens  of  the  State  in  which  it  is  to  be  enforced." 
Now  the  Legislature  of  England,  whether  wisely  or  not,  considers  the 
marriage  of  a  man  with  the  sister  of  his  deceased  wife  "  contrary  to 
God's  law,"  and  of  bad  example. 

Med  way  v.  Needhara,  16  Mass.  157,  according  to  the  marginal  note, 
decides  nothing  which  the  counsel  for  the  respondents  need  controvert. 
"  A  marriage  which  is  good  by  the  laws  of  the  country  where  it  is 
entered  into,  is  valid  in  any  other  country;  and  although  it  should 
appear  that  the  parties  went  into  another  State  to  contract  such 
marriage,  with  a  view  to  evade  the  laws  of  their  own  country,  the 
marriage  in  the  foreign  country  will,  nevertheless,  be  valid  in  the 
country  in  which  the  parties  live  ;  but  this  principle  will  not  extend 
to  legalize  incestuous  marriages  so  contracted."  This  judgment  was 
given  in  the  year  1819.  As  in  England,  so  in  America,  some  very 
important  social  questions  have  arisen  on  cases  respecting  the  settle- 
ment of  the  poor.  Whether  the  inhabitants  of  the  district  of  Medway, 
or  the  inhabitants  of  the  district  of  Needham,  were  bound  to  maintain 
a  pauper,  depended  upon  the  validity  of  a  marriage  between  a  mulatto 
and  a  white  woman.  They  were  residing  in  the  province  of  Massa- 
chusetts at  the  time  of  the  supposed  marriage,  which  was  prior  to  the 
year  1770,  As  the  laws  of  the  province  at  that  time  prohibited  all 
such  marriages,  they  went  into  the  neighboring  province  of  Rhode 
Island,  and  were  there  married  according  to  the  laws  of  that  province. 
They  then  returned  to  Massachusetts.  Chief  Justice  Parker  held  that 
the  marriage  was  there  to  be  considered  valid,  and,  so  far.  the  case  is 
an  authority  for  the  appellants.  Bat  I  cannot  think  that  it  is  entitled 
to  much  weight,  for  the  learned  judge  admitted  that  he  was  overruling 
the  doctrine  of  Huberus  and  other  eminent  jurists  ;  he  relied  on  deci- 
sions in  whicli  the  forms  only  of  celebrating  the  marriage  in  the  country 
of  celebration  and  in  the  country  of  domicil  were  different ;  and  he 
took  the  distinction  between  cases  where  the  absolute  prohibition  of 
the  marriage  is  forbidden  on  mere  motives  of  policy,  and  where  the 
marriage  is  prohibited  as  being  contrary  to  religion  on  the  ground  of 
incest.  I  myself  must  deny  the  distinction.  If  a  marriage  is  abso- 
lutely prohibited  in  any  country  as  being  contrary  to  public  polic}',  and 
leading  to  social  evils,  I  think  that  the  domiciled  inhabitants  of  that 
country  cannot  be  permitted,  by  passing  the  frontier  and  entering 
another  State  in  which  this  marriage  is  not  prohibited,  to  celebrate 


SECT.  III.]  BROOK    V.    BROOK.  _  "  69 

a  marriage  forbidden  bv  their  own  State,  and  immediately  returning 
to  their  own  State,  to  insist  on  their  marriage  being  recognized  as 
lawful.  Indeed  Chief  Justice  Parker  expressly  allowed  that  his  doc- 
trine would  not  extend  to  cases  in  which  the  prohibition  was  grounded 
on  religious  considerations,  saying,  '•  If  without  any  restriction,  then 
it  might  be  that  incestuous  marriages  might  be  contracted,  between 
citizens  of  a  State  where  the}-  were  held  unlawful  and  void,  in  countries 
where  they  were  prohibited." 

The  only  remaining  case  is  Sutton  v.  "Warren,  10  Met.  451.  The 
decision  in  this  case  was  pronounced  in  1845.  I  am  sorry  to  say,  that 
it  rather  detracts  from  the  high  respect  with  which  I  have  been  in  the 
habit  of  regarding  American  decisions  resting  upon  general  jurispru- 
dence. The  question  was,  whether  a  marriage  celebrated  in  England 
on  the  24th  of  November,  1834,  between  Samuel  Sutton  and  Ann 
Hills,  was  to  be  held  to  be  a  valid  marriage  in  the  State  of  Massa- 
chusetts. The  parties  stood  to  each  other  in  the  relation  of  aunt  and 
nephew,  Ann  Hills  being  own  sister  of  the  mother  of  Samuel  Sutton. 
They  were  both  natives  of  England,  and  domiciled  in  England  at  the 
time  of  their  marriage.  About  a  year  after  their  marriage  they  went 
to  America,  and  resided  as  man  and  wife  in  the  State  of  Massachusetts. 
By  the  law  of  that  State  a  marriage  between  an  aunt  and  her  nephew 
is  prohibited,  and  is  declared  null  and  void.  Nevertheless,  the  Supreme 
Court  of  Massachusetts  held  that  this  was  to  be  considered  a  valid 
marriage  in  Massachusetts.  But  I  am  bound  to  say  that  the  decision 
proceeded  on  a  total  misapprehension  of  the  law  of  England.  Justice 
Hubbard,  who  delivered  the  judgment  of  the  court,  considered  that 
such  a  marriage  was  not  contrary  to  the  law  of  England.  Now  there 
can  be  no  doubt  that  although  contracted  before  the  passing  of  5  &  6 
AVm.  IV.  c.  54,  it  was  contrary  to  the  law  of  England,  and  might  have 
Ijeen  set  aside  as  incestuous,  and  that  act  gave  no  protection  what- 
soever to  a  marriage  within  the  prohibited  degrees  of  consanguinity  ; 
so  that  if  Samuel  Sutton  and  Ann  Hills  were  now  to  return  to  England, 
their  marriage  miglit  still  be  declared  null  and  void,  and  they  might 
be  proceeded  against  for  incest.  If  this  case  is  to  be  considered  well 
decided  and  an  authority  to  be  followed,  a  marriage  contrary  to  the 
law  of  the  State  in  which  it  was  celebrated,  and  in  which  the  parties 
were  domiciled,  is  to  be  held  valid  in  another  State  into  which  they 
emigrate,  although  by  the  law  of  this  State,  as  well  as  of  the  State 
of  celebration  and  domicil,  such  a  marriage  is  prohibited  and  declared 
to  be  null  and  void.  This  decisions,  my  Lords,  may  alarm  us  at  the 
consequences  which  miglit  follow  from  adopting  foreign  notions  on 
such  subjects,  rather  than  adliering  to  the  principles  which  have 
guided  us  and  our  fathers  ever  since  the  Reformation. 

I  have  now,  my  Lords,  as  carefully  as  I  could,  considered  and 
touched  upon  the  arguments  and  authorities  brought  forward  on  behalf 
of  the  appellants,  and  I  must  say  that  they  seem  to  me  quite  insulH- 
cicnt  to  show  that  the  decree  appealed  against  is  erroneous. 


70  BROOK  V.    BROOK.  [CHAP.  VI. 

The  law  upon  this  subject  may  be  changed  bj-  the  legislature,  but 
I  am  bound  to  declare  that  in  my  opinion,  by  the  existing  law  of  Eng- 
land this  marriage  is  invalid.  It  is  therefore  my  duty  to  advise  your 
Lordships  to  affirm  the  decree,  and  dismiss  the  appeal. 

Lord  Cranwobth.^  There  can  be  no  doubt  as  to  the  power  of 
every  country  to  make  laws  regulating  the  marriage  of  its  own 
subjects,  to  declare  who  ma}'  marry,  how  they  may  marry,  and  what 
shall  be  the  legal  consequences  of  their  marrying.  And  if  the  mar- 
riages of  all  its  subjects  were  contracted  witliin  its  own  boundaries  no 
such  difficulties  as  that  which  has  arisen  in  the  present  case  could 
exist.  But  that  is  not  the  case  ;  the  intercourse  of  tlie  people  of  all 
Christian  countries  among  one  another  is  so  constant,  and  the  number 
of  the  subjects  of  one  country  living  in  or  passing  through  another 
is  so  great,  that  the  marriage  of  the  subject  of  one  country  within  the 
territories  of  another  must  be  matter  of  frequent  occurrence.  So, 
again,  if  the  laws  of  all  countries  were  the  same  as  to  wlio  might  marry, 
and  what  should  constitute  marriage,  tliere  would  be  no  difficulty  ;  but 
that  is  not  the  case,  and  hence  it  becomes  necessary  for  every  country 
to  determine  by  what  rule  it  will  be  guided  in  deciding  on  the  validity 
of  a  marriage  entered  into  beyond  the  area  over  which  the  authority  of 
its  own  laws  extends.  The  rule  in  this  country,  and  I  believe  generally 
in  all  countries,  is,  that  the  marriage,  if  good  in  the  countrj-  where  it  was 
contracted,  is  good  everj'where,  subject,  however,  to  some  qualifica- 
tions, one  of  them  being  that  the  marriage  is  not  a  marriage  prolul)ited 
by  the  laws  of  the  country  to  which  the  parties  contracting  matrimon}- 
belong. 

The  real  question,  therefore,  is,  whether  the  law  of  this  country,  by 
which  the  marriage  now  under  consideration  would  certainl}-  have  been 
void  if  celebrated  in  England,  extends  to  English  subjects  casually 
being  in  Denmark? 

I  think  it  does.  .  .  . 

Assuming,  then,  as  we  must,  that  such  marriages  are  not  only  pro- 
hibited by  our  law,  but  prohibited  because  tliey  are  contrar}'  to  the  law 
of  God,  are  we  to  understand  the  law  as  prohibiting  them  wheresoever 
celebrated,  or  only  if  they  are  celebrated  in  England?  I  cannot  hesi- 
tate in  the  answer  I  must  give  to  such  an  inquirj-.  The  law,  consider- 
ing the  ground  on  which  it  makes  the  prohibition,  must  have  intended 
to  give  to  it  the  widest  possible  operation.  If  such  unions  are  declared 
by  our  law  to  be  contrar}-  to  the  laws  of  God,  then  persons  having 
entered  into  them,  and  coming  into  this  country,  would,  in  the  eye  of 
our  law,  be  living  in  a  state  of  incestuous  intercourse.  It  is  impossible 
to  believe  that  the  law  could  have  intended  this. 

It  was  contended  that,  accordino;  to  tlie  argument  of  tlie  respondent, 
such  a  marriage,  even  between  two  Danes,  celebrated  in  Denmark, 
must  be  contrary  to  the  law  of  God,  and  that,  therefore,  if  the  parties 
to  it  were  to  come  to  this  countr}-,  we  must  consider  them  as  living  in 

1  Part  of  each  of  the  following  opinions  is  omitted.  —  Ed. 


SECT.  III.]  BROOK   V.    BROOK.  71 

incestuous  intercourse,  and  that  if  any  question  were  to  arise  here  as 
to  the  succession  to  their  property,  we  must  hold  the  issue  of  the 
second  marriage  to  be  illegitimate.  But  this  is  not  so.  We  do  not 
hold  the  marriage  to  be  void  because  it  is  contrary  to  the  law  of  God, 
but  because  our  law  has  prohibited  it  on  the  ground  of  its  being 
contrary  to  God's  law.  It  is  our  law  which  makes  the  marriage  void, 
and  not  the  law  of  God.  And  our  law  does  not  affect  to  interfere 
with  or  regulate  the  marriages  of  any  but  those  who  are  subject  to 
its  jurisdiction. 

Lord  St.  Leonards.  I  consider  this  as  purely  an  English  question. 
It  depends  wholly  upon  our  own  laws,  binding  upon  all  the  Queen's 
subjects.  ...  I  am  clearly  of  opinion  that  this  marriage  was  rendered 
void  by  the  Act  of  Will.  IV. 

Lord  Wenslevdale.  Both  the  judges  in  the  court  below  form 
their  judgment,  first,  on  the  ground  of  the  illegality  of  such  a  marriage 
in  England,  prohibited  from  very  early  times  by  the  legislature,  and 
finally  by  Lord  Lyndhurst's  Act,  5  &  6  Will.  IV.  c.  54  ;  secondly,  on 
the  ground  that  that  act  itself  is  to  be  considered  as  a  personal  act,  in 
effect  prohibiting  all  British  born  subjects,  in  whatever  part  of  the 
world  they  might  happen  to  be,  from  contracting  such  marriages,  and 
declaring  those  marriages  to  be  absolutely  void.  .   .  . 

It  is  unnecessary  to  enter  into  the  discussion  of  this  part  of  the 
case,  if  the  other  ground  is  satisfactory-,  which  I  think  it  is.  But  as  at 
present  advised,  I  dissent  upon  this  point  from  my  noble  and  learned 
friend  who  has  just  addressed  your  Lordships.  I  think  the  construc- 
tion put  upon  this  as  a  personal  act  is  wrong.  I  do  not  think  the 
purpose  of  the  statute  was  to  put  an  end  to  such  marriages  by  British 
subjects  in  any  part  of  the  world.  Its  object  was  only  to  make  abso- 
lutely void  thereafter  all  marriages  in  this  realm  between  persons 
witliin  the  prohibited  degrees  of  consanguinity  or  aflinity  which  were 
previously  voidable,  that  is,  which  were  really  void  according  to  our 
law,  though  they  could  be  avoided  only  by  a  suit  in  the  Ecclesiastical 
Court,  and  that  could  be  done  only  during  the  life  of  both  the  married 
parties. 

It  is  the  established  principle  that  every  marriage  is  to  be  universally 
recognized,  which  is  valid  according  to  the  law  of  the  place  where 
it  was  had,  whatever  that  law  may  be.  .  .  .  But  this  universally 
approved  rule  is  subject  to  a  qualification.  Iluber,  in  his  first  book, 
tit.  3,  art.  8,  says:  "  Matrimonium  si  licitum  est  eo  loco  ubi  contractum 
et  celcbratum  est,  ubique  vaUdum  erit,  eflectiinuiue  habcbit,  sub  eadein 
exceptione,  prejudicii  aliis  non  creandi ;  cui  licet  addere,  si  exempli 
nimis  sit  abominandi ;  ut  si  incestum  juris  gentium  in  secundo  gradu 
contingeret  alicubi  esse  permissum  ;  quod  vix  est  ut  usu  venire  possit." 
A  similar  qualification  is  introduced  by  Story,  Confl.  of  L.  §§  113  a, 
114.  He  states,  tliat  tiie  most  prominent,  if  not  the  only,  known 
exceptions  to  the  rule,  are,  first,  tliosc  marriages  involving  polygamy 
and  incest;   second,  those  positively  prohibited  by  the  public  law  of" 


72  SOTTOMAYOK   V.   DE   BAKROS.  [CHAP.  VI. 

a  country  from  motives  of  policy,  and  a  tliird  having  no  bearing  upon 
the  question  before  us. 

The  statute  law  of  the  country,  which  is  binding  on  all  its  subjects, 
.  .  .  must  be  considered  as  pronouncing  that  this  marriage  is  a 
violation  of  the  Divine  law,  and  therefore  that  it  is  void  within  the  first 
exception  made  by  Mr.  Justice  Story,  and  within  the  principle  of  the 
exception  laid  down  by  Huber.  If  our  laws  are  binding,  or  oblige  us, 
as  I  think  they  do,  to  treat  this  marriage  as  a  violation  of  the  com- 
mands of  God  in  Holy  Scripture,  we  must  consider  it  in  a  court  of 
justice  as  prejudicial  to  our  social  interest  and  of  hateful  example. 
But  if  not,  it  most  clearly  falls  within  the  second  exception  stated  by 
Story,  which  alone,  I  think,  need  be  considered,  as  it  is  clearly  illegal 
by  the  law  of  this  country  whether  it  be  considered  incestuous  or  not, 
and  a  violation  of  that  law. 

I  do  not,  therefore,  in  the  least  doubt  that  before  the  5  «fe  6  Wm.  IV. 
it  would  have  been  pronounced  void  by  the  Ecclesiastical  Court  on 
a  suit  instituted  during  the  life  of  both  parties.  And  therefore  I 
advise  your  Lordships  that  the  judgment  should  be  affirmed. 

Order  appealed  against  affirmed^  and  appeal  dismissed  with  costs.^ 


SOTTOMAYOR  v.   DE  BARROS. 
Court  of  Appeal.     1877. 
[Reported  3  Probate  Division,  1.] 

Cotton,  L.  J.  This  is  an  appeal  from  an  order  of  the  Court  of 
Divorce,  dated  the  17th  of  March,  1877,  dismissing  a  petition  pre- 
sented by  Ignacia  Sottomayor,  praying  the  court  to  declare  her  mar- 
riage with  the  respondent  Gonzalo  de  Barros  to  be  null  and  void. 
The  respondent  appeared  to  the  petition,  but  did  not  file  an  answer  or 
appear  at  the  hearing;  and  by  direction  of  the  judge,  tlie  Queen's 
proctor  was  served  with  the  petition,  and  appeared  by  counsel  to 
argue  the  case  against  the  petition. 

There  were  several  grounds  on  which  the  petitioner  originally  claimed 
relief,  but  the  only  ground  now  to  be  considered  is  that  she  and  the 
respondent  were  under  a  personal  incapacity  to  contract  marriage. 
The  facts  are  these  :  The  petitioner  and  respondent  are  Portuguese 
subjects,  and  are  and  have  always  been  domiciled  in  that  country, 
where  they  both  now  reside.  They  are  first  cousins,  and  it  was 
proved  that  by  the  law  of  Portugal  first  cousins  are  incapable  of  con- 
tracting marriage  by  reason  of  consanguinit}*,  and  that  an}-  marriage 
between  parties  so  related  is  by  the  law  of  Portugal  held  to  be  in- 
cestuous and  therefore  null  and  void  ;  but  tliough  not  proved,  it  was 

1  Contra,  Danelli  v.  Daiielli,  4  Bush,  51  ;  Sutton  v.  Warren,  10  Met.  451.  —Ed. 


SECT.  III.]  SOTTOMAYOR  V.    DE    BAREOS.  73 

admitted  before  us  that  such  a  marriage  would  be  valid  if  solemnized 
under  the  authorit}"  of  a  papal  dispensation. 

In  the  year  1858  the  petitioner,  her  father  and  mother,  and  her 
uncle,  De  Barros,  and  his  family,  including  the  respondent,  his  eldest 
son,  came  to  England,  and  the  two  famiUes  occupied  a  house  jointly 
in  Dorset  Square,  London.  The  petitioner's  father  came  to  this  coun- 
try for  the  benefit  of  his  health,  and  De  Barros  for  the  education  of 
his  children  and  to  superintend  the  sale  of  wine.  De  Barros  subse- 
quenth',  in  1861,  became  manager  to  a  firm  of  wine  merchants  in 
London,  carrying  on  business  under  the  style  of  Caldos  Brothers  & 
Co.,  of  which  the  petitioner's  father  was  made  a  partner,  and  which 
stopped  payment  in  1865.  On  the  21st  of  June,  1866,  the  petitioner, 
at  that  time  of  the  age  of  fourteen  years  and  a  half,  and  the  respond- 
ent, of  the  age  of  sixteen  years,  were  married  at  a  registrar's  office 
in  London.  No  religious  ceremony  accompanied  or  followed  the  mar- 
riage, and  although  the  parties  lived  togetlier  in  the  same  house  until 
the  year  1872,  the}'  never  slept  together,  and  the  marriage  was  never 
consummated.  The  petitioner  stated  that  she  went  through  the  form 
of  marriage  contrary  to  her  own  inclination,  by  the  persuasion  of  her 
uncle  and  mother,  on  the  representation  that  it  would  be  the  means  of 
preserving  her  father's  Portuguese  propert}-  from  the  consequences  of 
the  bankruptcy  of  the  wine  business. 

Under  these  circumstances  the  petitioner,  in  November,  1874,  pre- 
sented her  petition  for  the  object  above  mentioned,  and  Sir  R.  Philli- 
more,  before  whom  the  case  was  heard,  declined  to  declare  the  marriage 
invalid  and  dismissed  the  petition,  but  did  so,  as  we  understand, 
rather  because  he  felt  himself  bound  by  the  decision  in  the  case  of 
Simonin  v.  Mallac,  2  Sw.  &  Tr.  67;  29  Y.  J.  (P.  M.  &  A.)  97,  than 
because  he  considered  that  on  principle  the  marriage  ought  to  be  held 
good.  If  the  parties  had  been  subjects  of  Her  Majesty  domiciled  in 
England,  the  marriage  would  undoubtedly  have  been  valid.  But  it  is 
a  well-recognized  principle  of  law  that  the  question  of  personal  capac- 
ity to  enter  into  any  contract  is  to  be  decided  b}'  the  law  of  domicil. 
It  is,  however,  urged  that  this  does  not  apply  to  the  contract  of  mar- 
riage, and  that  a  marriage  valid  according  to  the  law  of  the  country 
where  it  is  solemnized  is  valid  everywhere.  This,  in  our  opinion,  is 
not  a  correct  statement  of  the  law.  The  law  of  a  country  where  a  1 
marriage  is  solemnized  must  alone  decide  all  questions  relating  to  the 
validity  of  the  ceremony  ])y  which  the  marriage  is  alleged  to  have  been 
constituted  ;  but,  as  in  other  contracts,  so  in  that  of  marriage,  personal 
capacity  must  depend  on  the  law  of  domicil ;  and  if  the  laws  of  any 
country  prohibit  its  sul)jects  within  certain  degrees  of  consanguinity 
from  contracting  marriage,  and  stamp  a  marriage  between  persons 
within  the  prohibited  degrees  as  incestuous,  this,  in  our  opinion,  im- 
poses on  the  subjects  of  that  country  a  personal  incapacity,  which 
continues  to  affect  them  so  long  as  they  are  domiciled  in  the  country 
where   this   law   prevails,    and   renders   invalid   a   marriage    between 


74  SOTTOMAYOR   V.    DE   BARROS.  [CIIAP.  VL 

persons  both  at  the  time  of  their  marriage  subjects  of  and  domiciled 
in  the  country'  which  imposes  this  restriction,  wherever  such  marriage 
may  have  been  solemnized.  In  argument  several  passages  in  Story's 
Conflict  of  Laws  were  referred  to,  in  support  of  the  contention  that 
in  an  English  court  a  marriage  between  persons  who  b}-  our  law  may 
lawfully  intermarr}'  ought  not  to  be  declared  void,  though  declared 
incestuous  by  the  law  of  the  parties'  domicil,  unless  the  marriage  is 
one  which  the  general  consent  of  Christendom  stamps  as  incestuous. 
It  is  hardly  possible  to  suppose  that  the  law  of  England,  or  of  any 
Christian  countrj',  would  consider  as  valid  a  marriage  which  the 
general  consent  of  Christendom  declared  to  be  incestuous.  Probably 
the  true  explanation  of  the  passages  in  Story  is  given  in  Brook  v. 
Brook,  9  H.  L.  C.  193,  at  pp.  227,  241,  by  Lord  Cran worth  and  by 
Lord  Wensleydale,  who  express  their  opinions  that  he  is  referring  to 
marriages  not  prohibited  or  declared  to  be  incestuous  bj'  the  municipal 
law  of  the  eountr}'  of  domicil. 

]3ut  it  is  said  that  the  impediment  imposed  by  the  law  of  Portugal 
can  be  removed  b}'  a  Papal  dispensation,  and,  therefore,  that  it  cannot 
be  said  there  is  a  personal  incapacity  of  the  petitioner  and  respondent 
to  contract  marriage.  The  evidence  is  clear  that  by  the  law  of  Portu- 
gal the  impediment  to  the  marriage  between  the  parties  is  such  that, 
in  the  absence  of  Papal  dispensation,  the  marriage  would  be  b^'  the 
law  of  that  country*  void  as  incestuous.  The  statutes  of  the  English 
Parliament  contain  a  declaration  that  no  Papal  dispensation  can 
sanction  a  marriage  otherwise  incestuous ;  but  the  law  of  Portugal 
does  recognize  the  validit}'  of  such  a  dispensation,  and  it  cannot 
in  our  opinion  be  held  that  such  a  dispensation  is  a  matter  of  form 
affecting  only  the  sufHcienc}-  of  the  ceremony  b}'  which  the  mari-iage 
is  effected,  or  that  the  law  of  Portugal,  which  prohibits  and  declares 
incestuous,  unless  with  such  a  dispensation,  a  marriage  between  the 
petitioner  and  respondent,  does  not  impose  on  them  a  personal  in- 
capacity to  contract  marriage.  It  is  proved  that  the  courts  of  Portu- 
gal, where  the  petitioner  and  respondent  are  domiciled  and  resident, 
would  hold  the  marriage  void,  as  solemnized  between  pai'ties  incapable 
of  marrying,  and  incestuous.  How  can  the  courts  of  this  country 
hold  the  contrary',  and,  if  appealed  to,  say  the  marriage  is  valid?  It 
was  pressed  upon  us  in  argument  that  a  decision  in  favor  of  the 
petitioner  would  lead  to  manv  difficulties,  if  questions  should  arise 
as  to  the  validit\-  of  a  marriage  between  an  English  subject  and  a 
foreigner,  in  consequence  of  prohibitions  imposed  by  the  law  of  the 
domicil  of  the  latter.  Our  opinion  on  this  appeal  is  confined  to  the 
case  where  both  the  contracting  parties  are,  at  the  time  of  their  mar- 
riage, domiciled  in  a  country  the  laws  of  which  prohibit  their  marriage. 
All  persons  are  legally  bound  to  take  notice  of  the  laws  of  the  countrv 
where  they  are  domiciled.  No  countrv  is  bound  to  recognize  the  laws 
of  a  foreign  state  when  they  work  injustice  to  its  own  subjects,  and 
this  principle  would  prevent  the  jnilg:neut  in   tlie  present  case  being 


FECT.  III.]  SOTTOMAYOR   V.   DE    BARROS.  75 

relied  on  as  an  authority'  for  setting  aside  a  marriage  between  a 
f(Meigner  and  an  English  subject  domiciled  in  England,  on  the  ground 
ot"  any  personal  ineai)acity  not  recognized  b}'  the  law  of  this  country. 

The  counsel  foi"  the  petitioner  relied  on  tiie  case  of  Brook  v.  Brook, 
as  a  decision  in  his  favor.  If,  in  our  opinion,  that  case  had  been  a 
decision  on  the  question  arising  on  this  petition,  we  should  have 
thought  it  sufficient  witliout  more  to  refer  to  that  case  as  decisive. 
The  judgment  in  that  case,  however,  only  decided  that  the  English 
courts  must  hold  invalid  a  marriage  between  two  English  subjects 
domiciled  in  this  countr}*,  who  were  prohibited  from  intermarrying  by 
an  English  statute,  even  though  the  marriage  was  solemnized  during  a 
temporar\-  sojourn  in  a  foreign  country.  It  is,  therefore,  not  decisive 
of  the  present  case  ;  but  the  reasons  given  b}-  the  Lords  who  delivered 
their  opinions  in  that  case  strongly  support  the  principle  on  which  this 
judgment  is  based. 

It  only  remains  to  consider  the  case  of  Simonin  v.  Mallac.  The 
objection  to  the  validit}-  of  the  marriage  in  that  case,  which  was 
vsolemnized  in  England,  was  the  want  of  the  consent  of  parents 
required  by  the  law  of  France,  but  not  under  the  circumstances  by 
that  of  this  country.  In  our  opinion,  this  consent  must  be  considered 
a  part  of  the  ceremony  of  marriage,  and  not  a  matter  affecting  the 
personal  capacit}'  of  the  parties  to  contract  marriage  ;  and  the  decision 
in  Simonin  v.  jMallac  does  not,  we  think,  govern  the  present  case. 
We  are  of  opinion  that  the  judgment  appealed  from  must  be  reversed, 
and  a  decree  made  declaring  the  marriage  null  and  void. 

Judgment  reversed.^ 

^  The  case  having  been  sent  down  to  the  Probate  Division  of  the  High  Court,  Sir 
.Tames  Hennen,  President,  found  that  though  the  petitioner  was  domiciled  in 
Portugal  at  the  time  of  the  marriage,  the  respondent  was  domiciled  in  England  at 
that  time ;  and  he  held  the  marriage  valid.  In  the  course  of  his  opinion  he  said : 
"  Tlie  Lord  Justices  appear  to  iiave  laid  down  as  a  principle  of  law  a  proposition 
which  was  much  wider  in  its  terms  than  was  necessary  for  tlie  determination  of  tlie 
case  Ijefore  them.  It  is  thus  expressed  :  '  It  is  a  well  recognized  principle  of  law  that 
the  question  of  personal  incapacity  to  enter  into  any  contract  is  to  be  decided  by  the 
law  of  domicil ; '  and  again,  'As  in  otiier  contracts,  so  in  that  of  marriage,  personal 
capacity  must  depend  on  the  law  of  domicil '  It  is  of  course  com])etent  for  the 
Court  of  Appeal  to  lay  down  a  principle  whiith,  if  it  formed  the  basis  of  a  judgment  of 
that  court,  must,  unless  it  should  be  disclaimed  by  the  House  of  Lords,  be  binding  in 
all  future  cases.  Hut  I  trust  that  I  may  be  permitted  without  disrespect  to  say  that 
the  doctrine  thus  laid  down  has  not  hitherto  been  'well  recognized.'  On  tiie  con- 
trary, it  appears  to  me  to  be  a  novel  principle,  for  whicii  up  to  the  present  time  there 
lias  been  no  English  authority.  Wiiat  authority  there  is  seems  to  me  to  be  the  other 
way."  —  Ed. 


76  WARTER   V.   WARTER.  [CHAP.  VI. 


WARTER   V.   WARTER. 
High  Court  of  Justice,  Probate  Division.     1890. 

[Reported  15  Probate  Division,  152.] 

Sir  James  Hannen,  President.  The  plaintiff  claims  probate  of 
a  will  ^  dated  February  6,  1880,  made  by  her  father,  Henry  De  Grey 
Warter,  who  died  on  March  23,  1889.  The  defendant,  the  son  of 
Henry  De  Grey  Warter,  alleges  that  the  will,  dated  February  6,  1880, 
was  revoked  by  the  subsequent  marriage  of  the  testator  with  Annette 
Louisa  Tayloe  on  April  2,  1881.  The  question  in  the  cause  is  whether 
the  marriage  celebrated  on  April  2,  1881,  was  the  marriage  of  the 
parties  —  that  is,  whether  they  had  not  concluded  a  valid  marriage 
before  the  execution  of  the  will  —  namely,  on  February  3,  1880. 
The  material  facts  are  as  follows:  The  mother  of  the  plaintiff  and 
defendant  was  formerly  the  wife  of  John  Edward  Tayloe,  and  was 
resident  with  him  in  India.  In  1879  Henry  De  Grey  Warter,  the  de- 
ceased in  this  cause,  was  a  major  in  the  Royal  Artillery,  stationed 
in  India.  In  1879  John  Edward  Tayloe,  being  so  resident,  instituted 
proceedings  in  the  High  Court  of  Judicature  at  Fort  William  in  Bengal 
for  the  dissolution  of  his  marriage  on  the  ground  of  his  wife's  adultery 
with  Major  De  Grey  Warter,  and  a  decree  nisi  was  pronounced  on 
May  19,  1879.  This  decree  was  made  absolute  on  November  27, 
1879.  By  the  Indian  Divorce  Act  of  1869, 'jurisdiction  is  given  to 
dissolve  the  marriage  when  the  petitioner  professes  the  Christian  re- 
ligion and  resides  in  India  at  the  time  of  presenting  the  petition  — 
that  is,  though  he  or  she  may  not  be  domiciled  there.  On  the  insti- 
tution of  the  proceedings  Mrs.  Tayloe  returned  to  England.  Major 
De  Grev  Warter  afterwards  joined  her  in  England,  and  went  through 
a  ceremony  of  marriage  on  February  3,  1880.  At  the  time  of  the 
marriage  Major  De  Grey  Warter  was  domiciled  in  England.  By  the 
Indian  Divorce  Act  —  Act  No.  4  of  1869 — under  which  the  pro- 
ceedings were  taken,  it  is  enacted  that  ''  when  six  months  after  the 
date  of  any  decree  of  the  High  Court  dissolving  a  marriage  have  ex- 
pired, and  no  appeal  has  been  presented  against  such  decree  to  the 
High  Court  in  its  appellate  jurisdiction,  but  not  sooner,  it  shall  be 
lawful  for  the  respective  parties  to  the  marriage  to  marry  again  as  if 
the  prior  marriage  had  been  dissolved  by  death."  The  marriage  in 
question  in  this  case  took  place  within  three  months  of  the  decree. 
It  was  contended  that  as  this  marriage  was  celebrated  in  England  the 
parties  were  freed  from  the  restraint  imposed  by  the  Indian  Bivorce 
Act.  I  am  of  opinion  that  that  is  not  the  case.  Mrs.  Tayloe  was 
subject  to  the  Indian  law  of  divorce,  and  she  could  only  contract  a 
valid  second  marriage  by  showing  that  the  incapacity  arising  from  her 

1  By  the  terms  of  his  will  Colonel  Warter  left  all  his  property  to  his  "  reputed 
wife."  —  Ed. 


SECT.  III.]  WALL    V.    WILLIAMSON.  77 

previous  marriage  had  been  effectualh-  removed  by  the  proceedings 
taken  under  that  law.  This  could  not  be  done,  as  the  Indian  law, 
like  our  own,  does  not  completely  dissolve  the  tie  of  marriage  until 
the  lapse  of  a  specified  time  after  the  decree.  This  is  an  integral 
part  of  the  proceedings  by  which  alone  both  the  parties  can  be  released 
from  their  incapacity  to  contract  a  fresh  marriage.  The  case  of  Scott 
V.  Attorney-General,  11  P.  D.  128,  was  relied  on  for  the  plaintiff.  I 
there  held  that  a  colonial  law  prohibiting  the  marriage  of  the  guilt}' 
party,  so  long  as  the  other  remained  unmarried,  did  not  operate  as  a 
bar  to  marriage  where  the  guilty  party  had  acquired  a  domicil  in  this 
country.  The  distinction  between  that  case  and  the  present  is  that 
there  the  incapacity  to  remarry  imposed  by  the  colonial  law  only  at- 
tached to  the  guilty  party.  It  was,  therefore,  penal  in  its  character, 
and  as  such  was  inoperative  out  of  the  jurisdiction  under  which  it  was 
inflicted.  A  case  to  the  same  effect,  and  based  on  the  same  principle, 
was  cited  from  an  American  report :  Ponsford  v.  Johnson,  2  Blatchf 
51.  For  these  reasons  I  am  of  opinion  that  the  marriage  of  Febru- 
ary 3,  1880,  was  invalid,  and  consequentl}'  that  the  will  of  February  6, 
1880,  was  revoked  by  the  valid  marriage  celebrated  on  April  2,  1881.^ 


WALL  V.   WILLIAMSON. 
Supreme  Court  of  Alabama.     1845. 
{Reported,  8  Alabama,  48.] 

Assumpsit,  by  WilHamson,  against  the  defendant,  as  the  maker  of  a 
promissory  note.  At  the  trial,  upon  the  general  issue,  the  defendant 
produced  evidence  tending  to  prove,  that  she  and  one  David  Wall  lived 
together,  as  man  and  wife,  from  the  year  1831  until  the  year  1839,  in 
the  territory  belonging  to  the  Choctaw  Indians,  until  that  was  annexed 
to,  and  made  the  county  of  Sumter;  after  which  they  lived  in  the  same 
relation,  in  that  count}-,  near  the  same  place  where  the}'  previously  had 
resided,  and  until  the  said  David  left  the  State  of  Alabama,  in  1839, 
and  went  to  the  Choctaw  country,  west  of  the  Mississippi.  Both  were 
of  Indian  extraction,  and  of  the  Choctaw  tribe  ;  that  they  were  regarded 
as  man  and  wife  by  the  tribe,  and  as  having  been  properly  married, 
according  to  the  laws  and  customs  of  the  Choctaws.  The  defendant 
had  said,  that  she  had  been  advised  that  she  had  not  been  legally  mar- 
ried ;  that  she  had  been  married  in  the  Choctaw  territory,  by  one  Pistole, 
a  justice  of  the  peace  from  Marengo  County.  It  was  also  in  proof,  that 
by  the  laws  and  customs  of  the  Choctaws,  the  husband,  by  his  marriage, 
takes  no  part  of  his  wife's  property  ;  that  among  them,  a  man  takes  a 
wife  at  pleasure,  and  dissolves  the  marrin.ge  whenever  he  pleases,  and 
that  the  men  are  allowed  a  plurality  of  wives. 

^  Ace.  McLenuan  v.  McLennan,  1.3  Or.  480,  .50  Tac.  802. —  Ed. 


78  WALL    V.    WILLIAMSON.  [CHAP.  VI. 

Upon  this  state  of  proof,  the  defendant  requested  the  court  to  instruct 
the  jur\-,  that  a  marriage  under  the  laws  and  customs  of  the  Choctaws,. 
entered  into  in  a  place  where  such  laws  and  customs  are  in  force,  is 
recognized  as  a  valid  marriage  b}-  the  laws  of  Alabama,  when  the  same 
are  extended  over  the  territory  where  the  parties  so  married  reside. 

This  was  refused,  and  the  court  charged  the  jur3- — 1.  That  the 
living  together  of  an  Indian  man  and  woman  would  not  be  regarded  by 
the  laws  of  this  State,  as  such  a  marriage  as  would  affect  a  contract 
entered  into  by  the  female.  2.  That  if  the  defendant  was  abandoned 
by  Wall,  and  she  executed  the  note  after  he  had  left  her,  that  she  would 
bo  bound  by  her  contract,  altliough  she  might  have  been  married. 
3.  That  if,  according  to  the  customs  among  the  Choctaws,  the  parties 
to  a  marriage  can  dissolve  it  at  pleasure,  by  mere  separation,  and  that 
the  defendant  and  Wall  did  so  separate,  then  the  defendant  was  liable 
on  her  contract,  as  a,  feme  sole. 

The  defendant  excepted  to  the  refusal  of  the  court  to  give  the  charge 
requested,  as  well  as  to  those  given,  and  error  is  assigned  upon  the  bill 
of  exceptions. 

GoLDTHWAiTE,  J.  Prcvious  to  entering  upon  the  consideration  of 
the  questions  raised,  by  the  refusal  to  give  the  charge  requested  by  the 
defendant,  it  is  not  improper  to  ascertain  what  facts  had  to  be  ascer- 
tained by  the  jury,  from  the  evidence.  The  existence  of  a  marriage 
between  David  Wall  and  the  defendant,  at  the  time  when  the  note  sued 
on  was  given  by  Mrs.  Wall,  was  one  of  the  principal  matters  to  be 
passed  upon,  bnce  established,  to  the  satisfaction  of  the  jury,  as  hav- 
ing been  entered  into,  in  conformity  with  the  usages  of  the  Choctaw 
tribe  of  Indians,  its  effect,  in  connection  with  the  laws  of  this  State, 
became  a  very  material  subject  of  inquiry.  The  defendant  insisted 
then,  and  now,  that  if  this  marriage  was  valid,  by  the  laws  and  usages 
of  the  Choctaw  tribe  of  Indians,  it  is  recognized  as  valid  by  the  laws 
of  Alabama.  Tlie  validity  of  the  marriage,  and  not  the  consequences 
of  it,  as  to  the  defendant,  was,  at  that  time,  the  subject  for  instruction. 
If  the  marriage  is  not  to  be  recognized  as  valid  by  our  law,  it  was  of 
no  consequence  to  the  defendant  what  further  charge  was  given  for  or 
against  her,  because  her  entire  defence  rested  on  sustaining  that  propo- 
sition. All  the  testimony  in  relation  to  rights  of  husband  and  wife 
under  the  Choctaw  law  may  have  been  of  a  disputable  or  doubtful 
nature.  These  observations  are  called  for  because  it  has  been  assumed 
that  this  charge  was  immaterial,  and  that  all  the  case  is  covered  by  the 
charge  actually  given  by  the  court. 

1.  With  respect  to  the  refusal  of  this  charge,  it  is  not  unlikely  that 
the  Circuit  Court  intended  to  be  understood  by  the  counsel  that  the 
charge  was  refused,  not  as  an  incorrect  proposition,  but  for  the  reason 
that  the  case  was  clear  for  the  plaintiff,  even  if  it  was  conceded.  If 
such  was  the  impression  of  the  court,  the  charge  should  have  been 
given,  with  the  necessary  explanation  to  direct  the  jury  to  the  consid- 
eration of  those  points  deemed  to  be  more  material.     The  general  rule 


SECT.  III.]  WALL   V.    WILLIAMSON'.  79 

upon  this  subject  is,  that  a  marriage  valid  at  the  place  where  contracted 
is  deemed  to  be  valid  everywhere  else.  Story,  Confl.  of  Laws,  §§  77, 
79,  103,  113  a.  It  is  said  by  the  same  author  that  the  most  promi- 
nent, if  not  the  only  exceptions  to  this  rule,  are  those  marriages  involving 
polygam}-  and  incest.     lb.  §  113  «,  114. 

These,  the  learned  author  says,  Christianity  is  understood  to  prohibit, 
and  therefore  no  Christian  country  would  recognize  polygamous  or 
incestuous  marriages.  Lord  Brougham,  in  Warrender  ?'.  Warrender, 
(cited  in  a  note  to  §  114,  9  Bligh.  112,)  says,  "It  is  important  to 
observe  that  we  regard  it  (marriage)  as  a  wholly  different  thing,  a 
dilferent  status,  from  Turkish  or  other  marriages  among  infidel  nations; 
because  we  clearly  never  should  recognize  the  pluralit}'  of  wives,  and 
consequent  validit}'  of  second  marriages,  standing  the  first,  which  second 
marriages  the  laws  of  those  countries  authorize  and  validate."  If  this 
doctrine  is  to  be  understood  as  leading  to  the  conclusion  that  a  court 
can  collaterally  inquire  into  the  existence  of  such  a  relationship  as  would, 
in  a  direct  proceeding,  annul  the  marriage,  it  is  very  questionable 
whether  it  is  sustainable.  1  Black.  Com.  434.  A  parallel  case  to  a 
Turkish  or  other  marriage  in  an  infidel  country  will  probably  be  found 
among  all  our  savage  tribes,  but  can  it  be  possible  that  the  children 
must  be  illegitimate  if  born  of  the  second  or  other  succeeding  wife? 
However  the  true  rule  ma}'  be,  it  is  immaterial  to  this  case,  unless  it 
can  be  shown  that  when  the  law  tolerates  pol3'gam3'. there  can  be  neither 
lawful  wife  nor  legitimate  children,  for  here  the  evidence  does  not  dis- 
close any  previous  marriage. 

The  validity  of  the  marriage  may  possibly  have  been  denied  u|)on  the 
impression  that  having  been  contracted  within  the  territorial  limits  of 
tlie  State,  it  cannot  be  affected  by  Choctaw  usages  or  customs,  though 
both  parties  were  of  that  tribe  and  resident  witliin  its  bounds. 

2.  Tlie  refusal  cannot  be  sustained  on  this  ground.  Waiving  the 
consideration  of  the  peculiar  relation  which  these  Indian  tribes  bear  to 
the  States,  withui  the  limits  of  which  they  were  resident,  and  assuming 
that  the  individuals  composing  the  tribes  could  by  the  States  have  been 
■made  subject  to  their  general  laws,  the  question  yet  remains  whether, 
at  the  time  of  this  supposed  marriage,  the  laws  and  usages  of  tlie  Choc- 
taw tril)e  had  been  abolished  or  superseded  ;  or  whether  they  composed 
a  distinct  community,  governed  by  their  own  chiefs  and  laws.  It  is 
not  pretended  that  any  statute  producing  this  effect  was  then  passed, 
and  therefore,  if  lost  at  all,  their  local  laws  must  have  been  lost  in  con- 
sequence of  their  living  witliin  tlie  territorial  limits  of  the  States.  It 
may  be  dillicult  to  ascertain  the  precise  period  of  time  when  one  nation, 
or  tribe,  is  swallowed  up  by  another,  or  ceases  to  exist ;  but  until  then 
there  cannot  be  said  to  be  a  merger.  It  is  only  by  positive  enactments, 
even  in  the  case  of  conquered  and  subdued  nations,  that  their  laws  are 
changed  by  tlu;  conqueror.  Tlie  mere  acfiuisition,  whetlier  by  treaty  oi 
war,  produces  no  such  effect.  It  may  therefore  be  considered  tliat  tlic 
•usages  and  customs  of  the  Choctaw  tribe  continued  as  their  law,  and 


80  WALL    V.   WILLIAMSON.  [CHAP.  VI. 

governed  their  people,  at  the  time  when  this  marriage  was  had.  The 
consequence  is,  that  if  valid  by  those  customs  it  is  so  recognized  by  our 
law.^ 

For  that  error,  in  refusing  thus  to  charge,  the  judgment  must  be  re- 
versed and  the  cause  remanded. 

3.  But  although  this  result  is  arrived  at,  it  yet  remains  necessaiy  to 
ascertain  what  further  instructions  ought  to  have  been,  or  should  be, 
given.  The  evidence  tended  to  show  that  b}'  the  Choctaw  law  the  hus- 
band takes  no  part  of  the  wife's  property.  A  necessary  consequence 
of  this  peculiarity  is,  that  the  wife  must  have  the  capacity  to  contract, 
for  otherwise  she  would  be  incapable,  in  many  instances,  to  preserve 
or  protect  her  property.  The  bill  of  exceptions  is  silent  as  to  any  posi- 
tive law  among  them,  as  to  this  point,  but  the  inference  is  direct  and 
immediate,  from  what  was  proved.  Having,  by  their  law,  the  capacity 
to  contract,  it  is  also  likely  that  means  were  provided  b}'  it  for  its  en- 
forcement ;  but  if  that  was  the  case,  we  do  not  see  how  she  could  be 
sued  in  a  court  of  law,  so  long  as  the  marriage  continued.  It  would 
present  nothing  but  tlie  case  of  a  wife  with  a  separate  estate  to  her  own 
use.  It  ma}'  be  possible  that  the  objection  to  the  form  of  action  could 
not  be  urged  at  the  trial,  but  it  is  unnecessar}'  to  consider  this  point 
further,  because  we  are  clear  that  the  marriage  was  dissolved  according 
to  Choctaw  usages  by  the  abandonment  of  the  husband. 

4.  Whatever  may  have  been  the  capacity  of  the  husband  to  abandon 
his  wife,  and  thereby  to  dissolve  the  marriage,  if  both  had  become  resi- 
dents of  Alabama  after  the  tribe  had  departed  from  its  limits,  it  is  ver}- 
clear  that  the  same  effect  must  be  given  to  a  dissolution  of  the  marriage 
by  the  Choctaw  law  as  given  to  the  marriage  b}'  the  same  law.  By  that 
law  it  appears  the  husband  may  at  pleasure  dissolve  the  relation.  His 
abandonment  is  evidence  that  he  has  done  so.  We  conceive  the  same 
effect  must  be  given  to  this  act  as  would  be  given  to  a  lawful  decree  in 
a  civilized  community  dissolving  the  marriage.  However  strange  it 
may  appear,  at  this  da}*,  that  a  marriage  may  thus  easily  be  dissolved, 
the  Choctaws  are  scarcely  worse  than  the  Romans,  who  permitted  a 
husband  to  dismiss  his  wife  for  the  most  frivolous  causes.  Story,  Confl. 
of  Laws,  169. 

The  jury  then  should  have  been  instructed  that  notwithstanding  the 
marriage,  if  contracted  according  to  Choctaw  usage,  between  members 
of  the  tribe,  in  their  own  territory,  before  their  laws  were  abrogated, 
was  valid,  yet  the  wife  had  the  capacity  to  contract,  and  in  case  of  a 
valid  contract,  was  liable  to  be  sued  as  a  feme  sole,  if  the  marriage 
could,  by  the  Choctaw  law,  be  dissolved  hy  the  husband  at  his  pleasure, 
and  was  so  dissolved,  which  might  be  inferred  if  the  husband  abandoned 
his  wife  and  went  with  his  tribe  beyond  the  Mississippi  or  elsewhere. 

Judgment  reversed  and  remanded. 

1  Ace.  Kobogum  i'.  Jackson  Iron  Co.,  76  Mich.  498,  43  N.  W.  602  ;  Earl  v.  Godley, 
42  Minn.  361 ;  Johnson  y.  Johnson,  30  Mo.  72;  Morgan  v.  McGhee,  5  Humph.  13; 
Connolly  v.  Woolrich,  11  L.  Can.  Jur.  197  ;  Ngqobela  v.  Sihele,  10  Juta  (Cape  Colony), 
346.     Contra,  In  re  Bethell,  38  Ch.  D.  220.  — Ed.  ^ 


SECT.  III.]  EOCHE    V.    WASHINGTON.  81 


ROCHE   r.    WASHINGTON. 
Supreme  Court  of  Indiana.     1862. 

[Reported  19  Indiana,  53.] 

Perkins,  J.  Suit  for  partition,  instituted  by  Francis  Washington 
against  John  Roche.  Partition  adjudged.  Motion  for  a  new  trial 
overruled.  Commissioners  report  partition.  Report  confirmed.  New- 
trial  denied.     Appeal  to  this  court. 

The  cause  was  decided  upon  the  following  agreed  case : 

"  It  is  hereby  agreed,  by  the  parties  to  this  action,  that  the  following 
are  the  facts  of  the  case  :  The  land  in  question,  of  which  partition  is 
prayed,  was  the  property  of  La-ka-ko-quah,  alias  Jane  Richardville, 
who  died  seized  of  the  same  in  1857,  leaving  no  children,  nor  father  or 
mother,  but  leaving  her  husband,  as  hereinafter  stated,  whose  name  is 
George  Washington,  and  her  sister,  Catharine  Richardville,  her  brother, 
Snap°Richardville,  and  Francis  Washington,  the  plaintiff,  who  is  an 
only  son  of  her  sister,  Ali-tah-pe-tah-neah,  deceased.  It  is  further 
agreed,  that  the  defendant,  John  Roche,  has  the  title  of  George  Wash- 
ington, Catharine  and  Snap  Richardville,  conveyed  to  him  since  the 
decease  of  the  said  Jane  Richardville.  It  is  further  agreed,  that  all  of 
the  foregoing  persons,  except  the  defendant,  are,  or  were,  Miami  Indians. 

"  It  i's  further  agreed,  that,  in  the  year  1844,  the  said  George  Wash- 
ington, according  to  the  manner  and  custom  of  marriage  in  said  Miami 
tri'be  of  Indians,  was  duly  married  to  Le-qua,  a  Miami  Indian,  with 
whom  he  lived,  residing  in  Huntington  County,  Indiana,  where  a  part 
of  the  said  Miami  tribe  then  and  since  have  resided  ;  that  in  the  year 
1846  the  said  George  Washington  and  the  said  Lc-qua,  according  to 
the  manner  and  custom  of  divorce  in  said  Miami  tribe,  were  duly 
divorced  ;  that  in  the  same  year,  1846,  said  Le-qua  removed  to  Kansas 
territory,  where  she  has  since  resided,  and  now  resides;  that  after- 
ward, in  the  year  1847,  said  George  Washington,  according  to  the 
custom  of  said  tribe  of  Indians,  was  married  to  tlie  said  Ah-tah-pe-tah- 
neah,  who  departed  this  life  in  1852,  leaving  said  Francis  Washington 
her  only  surviving  child  ;  that  afterward,  in  1853.  said  George  Wash- 
ington, according  to  the  custom  of  said  Indian  tribe,  was  married  to 
saTd  La-ka-ko-quali,  alias  Jane  Richardville,  and  that  the  two  lived 
together,  and  cohabited  as  man  and  wife,  till  her  death,  at  the  county 
of°Huntington,  in  1857,  she  dying  childless. 

"  It  is  further  agreed,  that  the  Indian  custom  of  marriage  requires 
no  ceremony  further  than  the  agreement  of  the  parties  to  live  together 
as  husband  and  wife,  the  agreement  being  consummated  by  living  and 
cohabiting  together  as  such. 

"  It  is  further  agreed,  that  the  Indian  custom  of  divorce  re(iuu-cs  no 
special  form  of  proceeding,  other  than  tliat  the  parties  disagree,  and, 
vor,.  II.  —  fj 


82  KOCHE    V.    WASHINGTON.  [CHAP.  VI. 

bv  consent,  separate,  the  mother  usually  taking  care  of,  and  receiving 
the  annual  payment  of  the  Government  to,  the  children  ;  and  that  tlie 
said  customs  of  marriage  and  divorce  are  the  ancient,  iramemorially 
continued,  and  present  existing  customs  among  all  of  said  tribe  of  In- 
dians, and  the  law  thereof ;  and  that  tlie  same  have  continued  to  exist, 
as  their  customs  and  laws,  from  a  period  beyond  the  memory  of  man." 

The  question  intended  to  be  presented  for  our  decision  in  this  cause 
is,  whether  the  courts  of  Indiana  will  hold  valid,  as  marriages,  such 
unions,  and  as  divorces,  such  separations,  as  those  described  in  the 
agreed  statement  of  facts,  they  having  been  made  under,  and  being 
sanctioned  by,  the  laws  of  the  Miami  tribe  of  Indians. 

It  is  claimed  that,  by  the  law  of  nations,  the  courts  of  Indiana  must 
uphold  Indian  marriages.  The  law  of  nations,  or  international  law,  is 
mainly  of  modern  origin,  growing  out  of  increased  commercial  and 
social  intercourse,  ami  exists  only  among  civiHzed  States.  1  Kent,  p.  1. 
It  is  very  properly  divided  by  late  writers  into  public  and  private. 
Public,  that  which  regulates  the  political  intercourse  of  nations  with 
each  other.  Private,  that  which  regulates  the  comity  of  States  in  giving 
effect,  in  one,  to  the  municipal  laws  of  another,  relating  to  private  per- 
sons, their  contracts,  etc. 

The  first  question  to  be  decided  is,  then,  Does  a  tribe  of  North 
American  Indians  constitute  a  State  ?  We  think  not.  A  State  has  been 
defined  to  be  "a  people  permanently  occupying  a  fixed  territory,  bound 
together  b}'  common  laws,  habits,  and  customs  [or  by  a  constitution], 
into  one  body  politic,  exercising,  through  the  medium  of  an  organized 
government,  independent  sovereignty  and  control  over  all  persons  and 
things  within  its  boundaries,  capable  of  making  war  and  peace,  and  of 
entering  into  international  relations  with  other  communities."  See  New 
Am.  Cyclop,  vol.  x.,  p.  360 ;  Wheat.  L.  of  Nations,  pp.  53,  54 ; 
1  Kent,  188,  189.  But  few  of  the  particulars  enumerated  as  constitut- 
ing a  State,  exist  in  a  tribe  of  North  American  Indians.  See,  however, 
The  Cherokee  Nation  v.  Georgia,  5  Pet.  (U.  S.)  Rep.  1.  This  the 
court  judicially  takes  notice  of  as  matter  of  general  historical  knowl- 
edge ;  the  Indians  are  not  educated  above  the  condition  of  nomadic, 
pastoral  tribes,  if  up  to  it.  Neither,  were  these  tribes  conceded  to  be 
States  or  nations,  in  the  political  or  international  sense  of  the  terms, 
are  they  civilized. 

Civilization,  it  is  true,  is  a  term  whicli  covers  several  states  of  society  ; 
it  is  relative,  and  has  not  a  fixed  sense  ;  but,  in  all  its  applications,  it 
is  limited  to  a  state  of  society  above  that  existing  among  the  Indians 
of  whom  we  are  speaking.  It  implies  an  improved  and  progressive 
condition  of  the  people,  living  under  an  organized  government,  with 
systematized  labor,  individual  ownership  of  the  soil,  individual  accumu* 
lations  of  property,  humane  and  somewhat  cultivated  manners  and 
customs,  the  institution  of  the  family,  with  well-defined  and  respected 
domestic  and  social  relations,  institutions  of  learning,  intellectual 
activity,  etc.     We  know,  historically,  that  the  North  American  Indians 


SECT.  Ill]  ROCHE    V.   WASHINGTON.  83 

are  classed  as  savage  and  not  as  civilized  people  ;  and  that,  in  fact,  it 
is  problematical  whether  they  are  snsceptible  of  civilization. 

But,  let  it  be  admitted  that  the  Miami  tribe  of  Indians  constitutes  au 
international  political  State,  and  that  it  is  a  civilized  one,  still  the  State 
of  Indiana  is  not  bound  by  international  comity  to  give  ell'ect,  in  her 
courts,  to  all  the  laws  and  customs  of  such  State,  but  only  to  such  as 
are  not  repugnant  to  her  own  laws  and  policy.     1  Ind.  21. 

Laws  giving  effect  to  contracts  of  marriage  are  not  repugnant  to  the 
laws  of  Indiana,  and  the  proposition  is  established,  as  a  general  one, 
in  private  international  law,  that  an  actual  marriage,  valid  in  the  country 
where  celebrated,  will,  not  as  upon  a  claim  of  right,  but  by  courtesy, 
be  given  effect  to  in  other  States,  though  not  celebrated  by  the  forms 
nor  evidenced  iu  the  mode  prescribed  for  marriages  in  such  other  States. 
If,  then,  in  the  case  at  bar,  an  actual  marriage  took  place  between  Jane 
Richardville  and  George  Washington,  there  could  be  no  objection  to  its 
being  upheld  in  the  courts  of  this  State,  though  celebrated  among  an 
uncivilized  tribe  of  Indians. 

What,  then,  constitutes  the  thing  called  a  marriage  ?  what  is  it  in  the 
eye  of  the  Jus  gentium?  It  is  the  union  of  one  man  and  one  woman, 
"  so  long  as  they  both  shall  live,"  to  the  exclusion  of  all  others,  by  an 
obligation  which,  during  that  time,  the  parties  cannot,  of  their  own 
volition  and  act,  dissolve,  but  which  can  be  dissolved  only  by  authority 
of  the  State.  Nothing  short  of  this  is  a  marriage.  And  nothing  short 
of  this  is  meant,  when  it  is  said,  that  marriages,  valid  where  made,  will 
be  upheld  in  other  States.  Noel  v.  Ewing,  9  Ind.  37  ;  Story's  Con- 
flict of  Laws,  chap.  v. ;  Wheaton's  Law  of  Nations,  137.  See  Reynolds 
r.  Reynolds,  3  Allen  (Mass.)  Rep.  605.  From  what  has  been  said,  it  is 
manifest  that  the  union  between  Jane  and  George,  described  in  the 
statement  of  facts  in  the  case  at  bar,  was  not  a  marriage,  according  to 
the  law  of  any  civilized  nation,  but  simply  and  exactly  a  contract  and 
state  of  concubinage.  See  Cobb  on  Slavery,  245,  note  4  ;  The  State 
V.  Samuel,  2  Dev.  and  Bat.  (N.  C.)  Rep.  177.  But,  suppose  the  union 
had  been  such  as  to  constitute  marriage,  according  to  the  jus  gentium, 
and  which  the  courts  of  this  State  would  have  upheld  as  such,  it  miglit 
not  still  have  followed,  as  a  consequence,  that  the  husband  would  have 
inherited,  from  the  wife,  her  real  estate.  The  marriage  is  one  thing, 
and  tlie  incidents,  the  legal  rights,  and  consequences  attaching  upon 
marriage,  are  ancjther  ;  and  these  may  be  different  as  to  real  and  per- 
sonal proi)ertv.  2  Kent,  p.  93  et  seq.  Marriage,  in  different  countries, 
is  followed  by  different  property  rights.  In  the  Miami  nation,  or  tribe 
of  Indians,  marriage,  supposing  we  concede  their  unions  of  sexes  to  be 
such,  is  not  followed  by  a  right  in  either  party,  by  the  law  of  the  tribe, 
to  inherit  real  estate  from  the  other;  for  the  Indians,  by  their  laws, 
neither  in  their  tribal  capacity,  nor  individually,  owned  any  real  estate. 
It  is  a  kind  of  proi)erty  unknown  to  them.  They  simply  hold  vaguely 
■defined  territory,  for  use  in  hunting,  fishing,  etc.,  and  they  m-ver 
assumed  to,  and  could  not  convey,  the  fee,  to  any  one.     That  belonged. 


84  ROCHE    V.   WASHINGTON,  [cHAP.  VI. 

first,  to  Great  Britain,  as  the  discovering  nation,  and  to  the  United 
States  afterward,  by  succession  to  Great  Britain  ;  and  it  is  under  our 
laws  only  that  any  individual  among  these  Indians  ever  obtained,  con- 
veyed, or  inherited  real  estate.  See  Fellows  v.  Denniston,  23  N.  Y. 
Rep.  420 ;  The  Cherokee  Nation  v.  Georgia,  5  Pet.  (U.  S.)  Rep.  1. 
This  is  the  doctrine  of  international  law  held  by  civilized  States,  and 
acted  upon  without  consulting  the  Indians.  It  is  based  or  justified  on 
the  ground  that  the  Indians  never  cultivated  the  soil.  But  the  case 
does  not  turn  on  any  of  the  foregoing  points,  and  they  need  not,  there- 
fore, be  regarded  as  decided.  See,  on  the  general  subject,  Dale  v.  Irish, 
2  Barb.  639  ;  Wall  v.  Williamson,  8  Ala.  48  ;  11  Ala.  826,  and  10  Ala. 
630.  Also,  Jones  v.  Laney,  2  Texas,  342,  and  the  cases  in  the  Supreme 
Court  of  the  United  States,  cited  in  Cush.  Dig.  240. 

A  treaty,  however,  we  may  remark,  may  be  made  between  a  govern- 
ment and  an  association  of  persons  not  constituting  an  independent 
government.  The  Constitution  of  the  United  States  authorizes  our 
government  to  treat  with  foreign  nations,  and  to  regulate  affairs  with 
States  and  Indian  tribes.  We  know,  as  a  part  of  the  law  of  the  land, 
and  the  history  of  our  State,  that  the  last  treaty  between  the  Miami 
tribe  of  Indians,  located  in  Indiana,  and  the  United  States,  was  in  1840  ; 
that  the  tribe  then  agreed  to  remove  from  Indiana  to  west  of  the 
Mississippi  river  ;  that,  in  1846,  the  agreement  was  executed,  the  chiefs 
at  that  time  extinguishing  their  council  fires  upon  the  Wabash,  and, 
accompanied  by  most  of  the  living  members  of  their  tribe,  departing 
for  their  newly  assigned  and  distant  home.  The  sovereignty  of  the  tribe, 
so  far  as  it  possessed  sovereignty,  its  jurisdictional  power,  so  far  as  it 
possessed  such  over  persons  and  property  in  Indiana,  disappeared  with 
the  light  of  its  council  fires,  and  departed  to  the  new  seat  of  tlie  tribe. 

Now,  it  is  true  as  a  general  proposition,  that  the  laws  of  a  nation  are 
operative  only  within  the  limits  of  the  territory  over  which  the  jurisdic- 
tion of  the  nation  extends.  They  do  not,  as  a  general  proposition, 
follow  the  individuals  of  such  nation  into  the  jurisdictional  limits  of 
another  nation,  so  as  to  attach  to  acts  done  in  such  other  nation. 
Hence,  if  citizens  of  Great  Britain,  of  China,  or  of  Africa,  contract 
marriage  in  Indiana,  that  contract,  to  be  valid,  must  conform  to  the 
laws  of  Indiana.  1  Bright's  Husband  and  Wife,  p.  8  ;  1  Greenleafs 
Ev.,  §  545.  For  exceptions  to  the  general  proposition  above  stated, 
see  Wheaton's  Law  of  Nations,  p.  132,  third  edition.  The  marriage, 
in  the  case  at  bar,  was  contracted  in  Indiana,  between  Miami  Indians 
who  did  not  accompany  the  tribe  to  the  West,  but  remained  to  live 
among  our  people  ;  and  it  was  contracted  after  all  territorial  jurisdiction 
of  the  tribe  had  ceased  in  the  State,  and  after  the  tribe  itself,  with  its 
government,  had  disappeared  from  our  borders.  The  marriage,  there- 
fore, was  clearly  to  be  tested  by  the  law  of  Indiana ;  certainly  so  when 
it  came  in  question  in  our  own  tribunals. 

The  judgment  helow  is  affirmed,  with  costs. 


SECT.  III.]  COMMONWEALTH    V.    LANE.  85 


COMMONWEALTH  v.   LANE. 

Supreme  Judicial  Court  of  Massachusetts.     1873. 

[Reported  113  Massachusetts,  458.] 

INDICTME^fT  on  the  Gen.  Sts.  c.  165,  §  4,  for  pokgam3^^ 

Gray,  C.  J.  The  report  finds  that  the  defendant  was  lawfulU'  mar- 
ried to  his  first  wife  in  this  Commonwealth  ;  that  she  obtained  a  divorce 
here  from  the  bond  of  matrimony,  for  his  adultery  ;  that  he  was  after- 
wards, while  still  a  resident  of  this  Commonwealth,  married  to  a  second 
wife  in  the  State  of  New  Hampshire,  and  cohabited  with  her  in  this 
Commonwealth,  the  first  wife  being  still  alive  ;  and  the  question  is 
whether  he  is  indictable  for  polygamy,  under  the  Gen.  Sts.  c.  165,  §  4. 

It  is  provided  by  our  statutes  of  divorce  that,  in  cases  of  divorce  from 
the  bond  of  matrimony,  the  innocent  party  may  marry  again  as  if  the 
other  party  were  dead ;  but  that  any  marriage  contracted  by  the  guilty 
party  during  the  life  of  the  other,  without  having  obtained  leave  from  this 
court  to  marry  again,  shall  be  void,  and  such  party  shall  be  adjudged 
guilty  of  polygamy.     Gen.  Sts.  c.  107,  §§  25.  26  ;  St.  1864,  c.  216. 

The  marriage  act,  Gen.  Sts.  c.  106,  specifies,  in  §§  1-3,  what  mar- 
riages shall  be  void  by  reason  of  consanguinity  or  affinit}' ;  in  §  4,  that 
all  marriages  contracted  while  either  of  the  parties  has  a  former  wife  or 
husband  living,  except  as  provided  in  c.  107,  shall  be  void  ;  in  §  5,  that 
no  insane  person  or  idiot  shall  be  capable  of  contracting  marriage;  and 
in  §  6  as  follows  :  "  When  persons  resident  in  this  State,  in  order  to 
evade  the  preceding  provisions,  and  with  an  intention  of  returning  to 
reside  in  this  State,  go  into  another  State  or  country,  and  there  have 
their  marriage  solemnized,  and  afterwards  return  and  reside  here,  the 
marriage  shall  be  deemed  void  in  this  State." 

All  these  sections,  except  the  last,  are  manifesth-  directed  and 
limited  to  marriages  within  the  jurisdiction  of  this  Commonwealth  ;  and 
the  last  has  no  application  to  this  ease,  because  it  does  not  appear  to 
have  been  proved  or  suggested  at  the  trial  that  the  parties  to  the 
second  marriage  went  out  of  this  State  to  evade  our  laws,  or  even  that 
the  second  wife  had  resided  in  this  State  or  knew  of  the  previous  mar- 
riage and  divorce. 

By  the  Gen.  Sts.  c.  165,  §  4,  ''  whoever,  having  a  former  husband  or 
wife  living,  marries  another  person,  or  continues  to  cohabit  with  such 
second  husband  or  wife  in  this  State,"  sliall  (except  when  the  first 
husband  or  wife  has  for  seven  3'ears  been  absent  and  not  known  to  the 
other  party  to  be  living,  or  in  case  of  a  person  legally  divorced  from 
the  bonds  of  matrimon}'  and  not  the  guilty  cause  of  such  divorce)  bo 
deemed  guilty  of  polygamy  and  punished  accordingly. 

This  statute  is  not  intended  to  make  any  marriages  unlawful  which 

'  Statoinent  of  facts  and  arffuineiits  of  (.•oiuisol  aro  omitted. — l]i>. 


86  COMMONWEALTH    V.    LANE,  [CHAP.  VI. 

are  not  declared  to  be  unlawful  by  other  statutes,  nor  to  punish  co- 
habitation under  a  lawful  marriage.  Its  object  is  to  prohibit  unlawful 
second  marriages,  whether  the  parties  are  actuall}'  married  in  this 
Commonwealth,  or  continue  after  being  married  elsewhere  to  cohabit 
here.  But  in  either  alternative,  in  order  to  sustain  the  indictment,  the 
second  marriage  must  be  unlawful.  It  is  not  enough  that  the  marriage 
is  such  as  would  be  unlawful  if  contracted  in  this  Commonwealth  ;  it  must 
be  a  marriage  which,  being  contracted  where  it  was,  is  unlawful  here. 

The  marriage  in  New  Hampshire  is  stated  in  the  report  to  have 
been  "  according  to  the  forms  of  law  ;  "  and  it  appears  by  the  statutes 
of  New  Hampshire,  therein  referred  to,  that  the  onlv  provision  relating 
to  the  invalidit}'  of  marriages  on  account  of  the  incompetency  of  parties 
to  contract  them  is  as  follows  :  "  All  marriages  prohibited  b}'  law,  on 
account  of  the  consanguinit}^  or  affinity  of  the  parties,  or  where  either 
has  a  former  wife  or  husband  living,  knowing  such  wife  or  husband  to 
be  alive,  if  solemnized  in  this  State,  shall  be  absolutely  void  without 
any  decree  of  divorce  or  other  legal  process."  Gen.  Sts.  of  N.  H. 
(1867),  c.  163,  §  1.  That  provision  clearly  does  not  extend  to  a  case 
in  which  the  former  wife,  having  obtained  a  divorce  from  the  bond  of 
matrimony,  was  absolutel}' freed  from  all  obligation  to  the  husband, 
and  in  which,  as  observed  by  Mr.  Justice  Wilde,  in  a  like  case,  "  not- 
withstanding the  restraints  imposed  on  the  husband,  he  being  the  guilt}' 
cause  of  the  divorce,  the  dissolution  of  the  marriage  contract  was  total, 
and  not  partial."  Commonwealth  v.  Putnam,  1  Pick.  136,  139.  The 
marriage  in  New  Hampshire  must  therefore  be  taken  to  have  been 
valid  by  the  law  of  that  State. 

The  question  presented  by  the  report  is  therefore  reduced  to  this  :  If 
a  man  who  has  been  lawfullj'  married  in  this  Commonwealth,  and 
whose  wife  has  obtained  a  divorce  a  vinculo  here  because  of  his 
adulterv,  so  that  he  is  prohibited  b}'  our  statutes  from  marrying  again 
without  leave  of  this  court,  is  married,  without  having  obtained  leave 
of  the  court,  and  being  still  a  resident  of  this  Commonwealth,  to 
another  woman  in  another  State,  according  to  its  laws,  and  afterwards 
cohabits  with  her  in  this  Commonwealth,  is  his  second  marriage  valid 
here  ? 

The  determination  of  this  question  depends  primarih'  upon  the  con- 
struction of  our  statutes,  but  ultimately  upon  fundamental  principles 
of  jurisprudence,  which  have  been  clearlv  declared  by  the  judgments  of 
our  predecessors  in  this  court,  and  in  the  light  of  which  those  statutes 
must  be  read  in  order  to  ascertain  their  just  extent  and  effect. 

What  marriages  between  our  own  citizens  shall  be  recognized  as 
valid  in  this  Commonwealth  is  a  subject  within  the  power  of  the  legis- 
lature to  regulate.  But  when  the  statutes  are  silent,  questions  of  the 
validity  of  marriages  are  to  be  determined  by  the  jus  gent'nim,  the 
common  law  of  nations,  the  law  of  nature  as  generally  recognized  by 
all  civilized  peoples. 

B}'  that  law,  the  validity  of  a  marriage  depends  upon  the  question  • 


SECT.  III.]  COMMONWEALTH    V.    L.VNE.  87 

whether  it  was  valid  where  it  was  contracted  ;  if  valid  there,  it  is  valid 
ever}' where. 

The  only  exceptions  admitted  by  our  law  to  that  general  rule  are  of 
two  classes:  1st.  Marriages  which  are  deemed  contrary  to  the  law  of 
nature  as  generally  recognized  in  Christian  countries  ;  2d.  Marriages 
which  the  legislature  of  the  Commonwealth  has  declared  shall  not  be 
allowed  any  validity,  because  contrary  to  the  polic}'  of  our  own  laws. 

The  first  class  includes  onlv  those  void  for  polygamy  or  for  incest. 
To  bring  it  within  the  exception  on  account  of  polygaui}',  one  of  the 
parties  must  have  another  husband  or  wife  living.  To  bring  it  within 
the  exception  on  the  ground  of  incest,  there  must  be  such  a  relation 
between  the  parties  contracting  as  to  make  the  marriage  incestuous 
according  to  the  general  opinion  of  Christendom  ;  and,  b}-  that  test, 
tlie  prohibited  degrees  include,  beside  persons  in  the  direct  line  of 
consanguinit}-,  brothers  and  sisters  only,  and  no  other  collateral  kin- 
dred. Wightman  v.  Wightman,  4  Johns.  Ch.  343,  349-351  ;  2  Kent 
Com.  83  ;  Story,  Confl.  §  114  ;  Sutton  v.  Warren,  10  Met.  451 ;  Steven- 
son V.  Gra}-,  17  B.  Mon.  193  ;  Bowers  r.  Bowers,  10  Rich.  Eq.  551. 

A  marriage  abroad  between  persons  more  remotely  related,  not 
absolutely-  void  by  the  law  of  the  country  where  it  was  celebrated,  is 
valid  here,  at  least  until  avoided  b}-  a  suit  instituted  for  the  purpose, 
even  if  it  might  have  been,  so  avoided  in  that  country  ;  and  this  is  so 
whether  the  relationship  between  the  parties  is  one  which  would  not 
make  the  marriage  void  if  contracted  in  this  Commonwealth,  as  in  the 
case  of  a  marriage  between  a  widower  and  his  deceased  wife's  sister, 
or  one  which  would  invalidate  a  marriage  contracted  here,  as  in  the 
case  of  a  marriage  between  aunt  and  nephew. 

In  Greenwood  v.  Curtis,  6  Mass.  358,  378,  379,  Chief  Justice  Par- 
sons said:  "If  a  foreign  State  allows  of  marriages  incestuous  bj-  the 
law  of  nature,  as  between  parent  and  child,  such  marriage  could  not  be 
allowed  to  have  any  validity  here.  But  marriages  not  naturally  unlaw- 
ful, but  prohibited  by  the  law  of  one  State,  and  not  of  another,  if  cele- 
brated where  they  are  not  prohibited,  would  be  holdeu  valid  in  a  State 
where  they  are  not  allowed.  As  in  this  State  a  marriage  between  a 
man  and  his  deceased  wife's  sister  is  lawful,  but  it  is  not  so  in  some 
States ;  such  a  marriage  celebrated  here  would  be  held  valid  in  any 
other  State,  and  the  parties  entitled  to  the  benefits  of  the  matrimonial 
contract."  Tiiis  distinction  was  approved  by  Cliancellor  Kent  and  by 
Judge  Story.     2  Kent  Com.  85,  note  a  ;  Story,  Confi.  §  116. 

In  The  Queen  v.  Wye,  7  A.  &  E.  761,  771;  s.  c.  3  N.  &  P.  6,  13, 
14  ;  it  was  decided  that  the  marriage  of  a  man  with  his  mothers  sister 
in  r:ngland  before  the  St.  of  5  &  6  Will.  IV.  c.  54,  though  voidable  by 
process  in  the  ecclesiastical  courts,  was.  until  so  avoided,  valid  for  all 
civil  purposes,  including  legitimacy  and  sottleinent.  In  accordance 
with  that  decision,  it  was  held  in  Sutton  r.  Warren,  10  Met.  451.  iliaL 
such  a  marriage  contracted  in  England,  and  never  avoided  there,  must, 
upon  the  subsequent  removal  of  the  parties  to  INIassachusetts,  and  the 


88  COMMONWEALTH   V.   LANE,  [CHAP.  VL 

question  arising  collaterally  in  an  action  at  common  law,  be  deemed 
valid  here,  although,  if  contracted  in  this  Commonwealth,  it  would 
have  been  absolutely  void. 

A  marriage  which  is  prohibited  here  by  statute,  because  contrary  to 
the  polic}'  of  our  laws,  is  yet  valid  if  celebrated  elsewhere  according  to 
the  law  of  the  place,  even  if  the  parties  are  citizens  and  residents  of 
this  Commonwealth,  and  have  gone  abroad  for  the  purpose  of  evading 
our  laws,  unless  the  legislature  has  clearly  enacted  that  such  marriages 
out  of  the  State  shall  have  no  validity  here.  This  has  been  repeatedly 
aflBrmed  by  well-considered  decisions. 

For  example,  while  the  statutes  of  Massachusetts  prohibited  mar- 
riages between  wliite  persons  and  negroes  or  mulattoes,  a  mulatto  and 
a  white  woman,  inhabitants  of  Massachusetts,  went  into  Rhode  Island, 
and  were  there  married  according  to  its  laws,  and  immediately  returned 
into  Massachusetts  ;  and  it  was  ruled  by  Mr.  Justice  Wilde  at  the  trial, 
and  affirmed  by  the  whole  court,  that  the  marriage,  even  if  the  parties 
went  into  Rhode  Island  to  evade  our  laws,  yet,  being  good  and  valid 
there,  must  upon  general  principles  be  so  considered  here,  and  that  the 
wife  therefore  took  the  settlement  of  her  husband  in  this  Common- 
wealth.    Medway  r.  Needham,  16  Mass.  157. 

So  it  has  been  held  that  a  man,  from  whom  his  wife  had  obtained  in 
this  State  a  divorce  a  vinculo  for  his  adultery,  which  by  our  statutes 
disabled  him  from  contracting  another  marriage,  might  lawfully  marry- 
again  in  another  State  according  to  its  laws;  that  the  children  of  such 
marriage  took  the  settlement  of  their  father  in  this  Commonwealth  ; 
and  that  the  new  wife  was  entitled  to  dower  in  his  lands  here,  even  if 
the  wife  as  well  as  the  husband  was  domiciled  here,  and  knew  of  the 
previous  divorce  and  its  cause,  and  went  into  the  other  State  to  evade 
our  laws — so  long  as  our  statutes  did  not  declare  a  marriage  con- 
tracted there  with  such  intent  to  be  void  here.  "West  Cambridge  v. 
Lexington,  1  Pick.  506  ;  Putnam  v.  Putnam,  8  Pick.  433.  See  also 
Dickson  v.  Dickson,  1  Yerger,  110;  Ponsford  v.  Johnson,  2  Blatchf 
C.  C.  51  ;  2  Kent  Com.  91-93. 

The  principles  upon  which  these  decisions  proceeded  were  recognized 
in  all  the  English  cases  decided  before  the  American  Revolution, 
although  it  is  true,  as  has  since  been  pointed  out,  that  the  particular 
question  in  each  of  them  related  rather  to  the  forms  required  than  to 
the  capacity  of  the  parties. 

Lord  Hardwicke's  Marriage  Act  in  1752  provided  that  all  marriages 
of  minors,  solemnized  by  license  without  the  consent  of  parents  or 
guardians,  should  be  void.  St.  26  Geo.  II.  c.  33,  §  11.  Yet  in  the 
first  ease  which  arose  under  tliat  act,  in  which  an  English  boy  of  eight- 
een 3'ears  old  went  abroad  with  an  English  woman,  and  was  there 
married  to  her  without  such  consent.  Lord  Hardwicke,  sitting  as  chan- 
cellor, assumed  that  if  the  marriage  had  been  valid  by  the  law  of  the 
country  in  which  it  was  celebrated,  it  would  have  been  valid  in  Eng- 
land, saj'ing :  "  It  will  not  be  valid  here  unless  it  is  so  by  the  laws  of 


SECT.  III.]  COMMONWEALTH    V.    LANE.  89 

the  country  where  it  was  had  ;  and  so  it  was  said  by  IMurray,  altorncy- 
seneral,  to  have  been  determined  lately  at  the  Delegates."  And  it 
would  seem  by  the  report  that  the  woman  defeated  an  application  to 
the  Ecclesiastical  Court  to  annul  the  marriage,  by  refusing  to  appear 
there.     Butler  c.  Freeman,  Ambl.  301. 

The  case,  thus  referred  to  as  determined  at  the  Delegates,  was  evi- 
dently Scrimshire  v.  Scrimshire,  decided  by  Sir  Edward  Simpson  in  the 
Consistory  Court  in  1752.  Of  that  opinion,  Sir  George  Hay,  in  Har- 
ford V.  Morris,  2  Hagg.  Con.  423,  431,  said,  "  Every  man  has  allowed 
the  great  and  extensive  knowledge  of  the  judge  ;  "  and  Sir  William 
Wynne,  in  Middleton  v.  Janverin,  2  Hagg.  Con.  437,  446,  remarked 
that  he  remembered  to  have  heard  that  the  judgment  was  founded  on 
great  deliberation,  and  that  Lord  Hardwicke  was  consulted  on  it. 

In  Scrimshire  v.  Scrimshire,  Sir  Edward  Simpson,  in  delivering 
judgment,  said  :  "  The  question  being  in  substance  this,  Whether,  by 
the  law  of  this  country,  marriage  contracts  are  not  to  be  deemed  good 
or  bad  according  to  the  law  of  the  country  in  which  they  are  formed; 
and  whether  they  are  not  to  be  construed  by  that  law?  If  such  be  the 
law  of  this  country,  the  rights  of  English  subjects  cannot  be  said  to  be 
determined  by  the  laws  of  France,  but  by  those  of  their  own  country, 
which  sanction  and  adopt  this  rule  of  decision."  "  All  nations  allow 
marriage  contracts;  they  are  juris  gentium,  and  the  subjects  of  all 
nations  are  equally  concerned  in  them  ;  and  from  the  infinite  mischief 
and  confusion  that  must  necessarily  arise  to  the  subjects  of  all  nations, 
with  respect  to  legitimacy,  successions,  and  other  rights,  if  the  respec- 
tive laws  of  different  countries  were  only  to  be  observed,  as  to  mar- 
riages contracted  by  the  subjects  of  those  countries  abroad,  all  nations 
have  consented,  or  must  be  presumed  to  consent,  for  the  common 
benefit  and  advantage,  that  such  marriages  should  be  good  or  not, 
according  to  the  laws  of  the  country  where  they  are  made.  It  is  of 
equal  consequence  to  all,  that  one  rule  in  these  cases  should  be 
observed  by  all  countries,  —  that  is,  the  law  where  the  contract  is 
made."  And  he  declared  the  marriage  in  that  case  to  be  invalid,  only 
because  it  appeared  to  be  wholly  null  and  void  by  the  laws  of  France, 
where  it  was  celebrated.     2  Hagg.  Con.  305,  407,  408,  417,  421. 

In  Compton  v.  Bcarcroft  (1767-69),  where  the  parties,  both  l)oing 
English  subjects  and  the  libellant  a  minor,  ran  away  and  were  married 
in  Scotland,  a  libel  for  the  nullity  of  the  marriage  was  dismissed  by 
Sir  George  Hay  in  the  Court  of  Arches,  upon  the  ground  that  Lord 
Hardwicke's  Act  did  not  extend  to  Scotland  ;  but  by  the  Court  of 
Delegates  on  appeal,  consisting  of  Justices  Gould  and  Aston,  Baron 
Perrott,  and  two  doctors  of  civil  law,  upon  the  broader  ground  that 
the  marriage  was  good  by  the  lex  loci.  2  Hagg.  Con.  430,  443,  444, 
and  note  ;  s.  c.  Bui.  N.  V.  113,  114.  Sec  also  Ilderton  v.  Ilderton,  2 
II.  Bl,  145  ;  Dalrymple  o.  Dalrymple,  2  Hagg.  Con.  54,  59  ;  Ruding  r. 
Smith,  lb.  371,  390,  891  ;  Steele  v.  Braddcll,  INIilward,  1,  21. 

In  a  recent  case  in  the  House  of  Lords,  tlie  cases  of  Medway  /' 


90  COMMONWEALTH    V.   LANE.  [CIIAP.  VI, 

Needhara,  16  Mass.  157,  and  Sutton  v.  Warren,  10  Met.  451,  above 
cited,  have  been  severely  criticised,  and  pointedly  denied  to  be  law. 
Brook  V.  Brook,  9  H.  L.  Cas.  193  ;  s.  c.  3  Sm.  &"^Giff.  481.  As  that 
court  is  the  one  of  all  foreign  tribunals,  the  opinions  of  which,  owing 
to  the  learning,  experience,  and  abilit}'  of  the  judges,  we  are  accustomed 
to  regard  with  the  most  respect,  it  becomes  necessar}'  to  examine  with 
care  the  scope  of  that  decision,  and  the  soundness  of  the  reasons 
assigned  for  it ;  and  in  order  to  make  this  examination  intelligible,  it 
will  be  convenient  first  to  refer  to  the  English  statutes  and  to  some 
earlier  decisions. 

Several  statutes  of  Henry  VIII.,  which  it  is  necessary-  to  state  in 
detail,  declared  marriages  within  certain  degrees  of  consanguinity  and 
afflnit}',  and  among  others  the  marriage  of  a  widower  with  his  deceased 
wife's  sister,  to  be  "  contrary  to  God's  law  as  limited  and  declared  by 
act  of  ParUament."  Sts.  25  Hen.  VIII.  c.  22  ;  28  Hen.  VIII.  cc.  7, 
16  ;  32  Hen.  VIII.  c.  38.  While  those  statutes  remained  unaltered,  a 
period  of  nearly  three  hundred  years,  such  marriages  were  held  b}-  the 
judges  not  to  be  absolutely  void,  but  voidable  only  by  suit  in  the 
ecclesiastical  courts  during  the  lifetime  of  both  parties,  and,  if  not  so 
avoided,  were  treated  as  valid,  the  wife  entitled  to  dower,  and  the 
children  of  the  marriage  legitimate,  Co.  Lit.  33;  Hinks  v.  Harris,  4 
Mod.  182;  s.  c.  12  Mod.  35;  Garth.  271;  2  Salk.  548.  Lord  Hard- 
wicke,  in  Brownsword  v.  Edwards,  2  Ves.  Sen.  243,  245;  1  Bl.  Com. 
434,  435  ;  Elliott  v.  Gurr,  2  Phillira.  16;  The  Queen  r.  Wye,  7  A.  & 
E.  761,  771  ;  s.  c.  3  N.  &  P.  6,  13,  14;  Westby  v.  Westby,  2  Dru. 
&  War.  502,  515,  516;  s.  c.  1  Con.  &  Laws.  537,  544,  545;  4  Irish 
Eq.  585,  593. 

The  St.  of  5  &  6  Will,  IV.  c.  54,  commonly  known  as  Lord  L^nd- 
hurst's  Act,  provided,  as  to  marriages  between  persons  within  the 
prohibited  degrees  of  affinity,  as  follows  :  1st,  that  such  marriages, 
celebrated  before  the  passage  of  the  act,  should  not  be  annulled, 
except  in  a  suit  already  pending  in  the  ecclesiastical  courts  ;  2d,  that 
such  marriages,  thereafter  celebrated,  should  be  absolutely  null  and 
void  to  all  intents  and  purposes  whatever ;  3d,  that  nothing  in  this  act 
should  be  construed  to  extend  to  Scotland. 

The  marriage  of  a  widower  with  the  sister  of  his  deceased  wife,  in 
England,  after  this  statute,  was  held  to  be  within  the  prohibited 
degrees  and  utterly  void.     The  Queen  r.  Chad  wick,  11  Q.  B.  173,  234. 

A  case  afterwards  came  before  the  Scotch  courts,  in  which  an  Eng- 
lish citizen  married  his  deceased  wife's  sister  in  England  ;  the  validity 
of  the  marriage  was  not  disputed  during  her  life,  and  she  died  before 
the  St.  of  Will.  IV.  ;  and  the  question  was,  whether  the  children  of 
the  marriage  could  inherit  his  lands  in  Scotland.  The  Scotch  courts, 
in  a  series  of  very  able  opinions,  held  that  they  could,  upon  the  ground 
that  by  the  law  of  England,  the  marriage,  not  having  been  challenged 
in  the  lifetime  of  both  parties,  could  not  in  any  form  be  declared  invalid 
in  England,  and  the  cliildren  were  legitimate  there,  and  must  therefore 


SECT.  III.]  COMMONWEALTH    V.   LANE.  91 

be  deemed  legitimate  in  Scotland.  Fenton  v.  Livingstone,  16  Ct.  of 
Sess.  Cas.  (2d  Series)  104,  and  18  ib.  865.  The  House  of  Lords,  on 
appeal,  reversed  that  decision,  and  held  that,  although  the  marriage 
had,  by  reason  of  the  peculiar  rules  governing  the  English  courts  of 
temporal  and  ecclesiastical  jurisdiction,  become  irrevocable  there,  yet 
it  was  always  illegal;  and  that,  those  rules  not  being  applicable  in  the 
Scotch  courts,  the  legitimacy  of  the  children  in  Scotland  depended 
upon  the  question  whether  the  marriage  was  illegal  by  the  law  of 
Scotland,  s.  c.  3  Macq.  497.  The  Scotch  court  thereupon  decided 
that  the  marriage  was  illegal,  and  that  the  children  were  incapable  of 
inheriting  lands  in  Scotland,  s.  c.  23  Ct.  of  Sess.  Cas.  (2d  Series) 
566. 

In  Brook  v.  Brook,  i(bi  supra,  a  widower  and  the  sister  of  his 
deceased  wife,  being  lawfully  domiciled  in  England,  while  on  a  tem- 
porary visit  to  Denmark,  had  a  marriage  solemnized  between  them, 
which  was  by  the  laws  of  Denmark  lawful  and  valid  to  all  intents  and 
purposes  whatsoever.  In  a  suit  in  equity,  brought  after  the  death  of 
both  parties,  to  ascertain  the  rights  of  the  children  in  their  father's 
propert}-,  the  House  of  Lords,  in  accordance  with  the  opinions  of 
Lords  Campbell,  Cranworth,  St.  Leonards,  and  Wensleydale,  and 
affirming  a  decree  rendered  by  Vice  Chancellor  Stuart,  assisted  by  Mr. 
Justice  Cresswell,  held  that  the  marriage  in  Denmark  was  wholly  void 
by  the  St.  of  Will.  IV.,  and  that  the  children  of  that  marriage  were 
bastards. 

The  decision  was  put,  by  the  learned  judges  who  concurred  in  it, 
upon  three  different  grounds. 

The  first  ground  was  that  the  St.  of  Will.  IV.  disqualified  English 
subjects  everywhere  from  contracting  such  a  marriage.  This  ground 
was  taken  in  the  court  below,  and  by  Lord  St.  Leonards  in  the  House 
of  Lords.  3  Sm.  &  Giff.  522,  525  ;  9  H.  L.  Cas.  234-238.  But  it 
was  expressly  disclaimed  by  Lord  Campbell,  Lord  Cranworth,  and 
Lord  Wensleydale,  the  two  former  of  whom  expressed  opinions  tliat 
the  statute  did  not  extend  to  all  the  colonies,  and  all  three  declared 
that  they  did  not  think  its  purpose  was  to  put  an  end  to  such  mar- 
riages by  British  subjects  throughout  the  world.  9  H.  L.  Cas.  214, 
222,  240. 

The  second  ground,  which  was  suggested  by  INIr.  Justice  Cresswell 
and  Lord  Wensleydale  only,  and  is  opposed  to  all  the  American 
authorities,  was  that  the  case  justly  fell  within  the  first  exception, 
stated  in  Storv,  Confl.  §  114,  of  marriages  involving  polygamy  and 
incest.  3  Sm."&  Giff,  513  ;  9  IL  L.  Cas.  241,  245.  In  view  of  that 
position,  it  may  be  observed  that  in  an  earlier  case,  in  which  Lord 
Wensleydale  himself  (then  Baron  Parke)  delivered  the  opinion,  a  mar- 
riage of  a  widower  with  his  deceased  wife's  sister,  before  the  St.  of 
Will.  IV.,  was  prevented  from  being  made  irrevocable  l)y  that  statute, 
only  by  tlic  institution,  a  week  before  its  passage,  of  a  suit  for  nullity  in 
"he  Ecclesiastical  Court  by  tlie  fatlier  of  the  supposed  wife  ;  and  l>y  the 


92  COMMONWEALTH    V.    LANE.  [CHAP.  VI. 

decision  of  the  Privy  Council,  that  because,  if  the  marriage  was  not  set 
aside,  the  birth  of  a  child  of  the  marriage  would  impose  a  legal  obliga- 
tion upon  the  grandfather  to  maintain  the  child  in  the  event  of  its 
being  poor,  lame,  or  impotent,  and  unable  to  work,  he  had,  according 
to  the  rules  of  the  ecclesiastical  courts,  a  sufficient  interest,  ''  although 
of  an  extremel}'  minute  and  contingent  character,"  to  support  such  a 
suit.     Sherwood  v.  Ray,  1  Moore  P.  C.  353,  401,  402. 

The  third  ground,  upon  which  alone  all  the  law  lords  agreed,  was 
that  the  St.  of  Will.  IV.  made  all  future  marriages  of  this  kind  between 
English  subjects,  having  their  doraicil  in  England,  absolutely  void, 
because  declared  by  act  of  Parliament  to  be  contrary  to  the  law  of 
God,  and  must  therefore  be  deemed  to  include  such  marriages,  although 
solemnized  out  of  the  British  dominions. 

The  law  of  England,  as  thus  declared  by  its  highest  legislative  and 
judicial  authorities,  is  certainly  presented  in  a  remarkable  aspect.  1st. 
Before  the  St.  of  Will.  IV.,  marriages  within  the  prohibited  degrees 
of  affinity,  if  not  avoided  by  a  direct  suit  for  the  purpose  during  the 
lifetime  of  both  parties,  had  the  same  effect  in  Elngland,  in  every 
respect,  as  if  wholly  valid.  2d.  This  statute  itself  made  such  mar- 
riages, already  solemnized  in  England,  irrevocably  valid  there,  if  no 
suit  to  annul  them  was  already  pending.  3d.  It  left  such  marriages  in 
England,  even  before  the  statute,  to  be  declared  illegal  in  the  Scotch 
courts,  at  least  so  far  as  rights  in  real  estate  in  Scotland  were  con- 
cerned. 4th.  According  to  the  opinion  of  the  majority  of  the  law  lords, 
it  did  not  invalidate  marriages  of  English  subjects  in  English  colonies, 
in  which  a  different  law  of  marriage  prevailed.  5th.  But  it  did  make 
future  marriages  of  this  kind,  contracted  either  in  England  or  in  a 
foreign  country,  by  English  subjects  domiciled  in  England,  absolutely 
void,  because  declared  by  the  British  Parliament  to  be  contrary  to  the 
law  of  God. 

The  judgment  proceeds  upon  the  ground  that  an  act  of  Parliament 
is  not  merely  an  ordinance  of  man,  but  a  conclusive  declaration  of  the 
law  of  God  ;  and  the  result  is  that  the  law  of  God,  as  declared  by  act 
of  Parliament  and  expounded  by  the  House  of  Lords,  varies  according 
to  time,  place,  length  of  life  of  parties,  pecuniary  interests  of  third 
persons,  petitions  to  human  tribunals,  and  technical  rules  of  statutory 
construction  and  judicial  procedure. 

The  case  recalls  the  saying  of  Lord  Holt,  in  London  v.  "Wood,  12 
Mod.  669,  687,  688,  that  "an  act  of  Parliament  can  do  no  wrong, 
though  it  may  do  several  things  that  look  pretty  odd  ;  "  and  illustrates 
the  effect  of  narrow  views  of  policy,  of  the  doctrine  of  "  the  omnipo- 
tence of  Parhament,"  and  of  the  consequent  unfamiliarity  with  ques- 
tions of  general  jurisprudence,  upon  judges  of  the  greatest  vigor  of 
mind,  and  of  the  profoundest  learning  in  the  municipal  law  and  in  the 
forms  and  usages  of  the  judicial  system  of  their  own  country. 

Such  a  decision,  upon  such  reasons,  from  any  tribunal,  however 
eminent,  can  have  no  weight  in  inducing  a  court,  not  bound  by  it  as 
authority,  to  overrule  or  disregard  its  own  decisions. 


SECT.  III.]  KINNEY   V.   COMMONWEALTH.  93 

The  provision  of  the  Geu.  8ts.  c.  107,  §  25,  forbidding  the  guilty 
party  to  a  divorce  to  contract  another  marriage,  during  the  life  of  the 
other  party,  without  leave  of  this  court,  on  pain  of  being  adjudged 
guilty  of  polygamy,  does  not  create  a  permanent  incapacity,  like  one 
arising  from  consanguinity  or  affinity.  It  is  rather  in  the  nature  of  the 
imposition  of  a  penalty,  to  which  it  would  be  difficult  to  give  any  extra- 
territorial operation.  West  Cambridge  i\  Lexington,  1  Pick.  506,  510, 
512  ;  Clark  v.  Clark,  8  Cush.  385,  38G.  Upon  the  principles  and 
authorities  stated  in  the  earlier  part  of  this  opinion,  it  certainly  can- 
not invalidate  a  subsequent  marriage  in  another  State  according  to  its 
laws,  at  least  without  proof  that  the  parties  went  into  that  State  and 
were  married  there  with  the  intent  to  evade  the  provisions  of  the 
statutes  of  this  Commonwealth.  No  such  intent  being  shown  in  this 
case,  we  need  not  consider  its  effect,  if  proved,  nor  whether  the  indict- 
ment is  in  due  form.  See  Commonwealth  v.  Putnam,  1  Pick.  136, 
139  ;  Commonwealth  v.  Hunt,  4  Cush.  49. 

JVew  trial  ordered.^ 


Ki 


it 


KINNEY   V.   COMMONWEALTH. 

Court  of  Appeals  of  Virginia.     1878. 

[Reported  30   Grattan,  858.] 

Christian,  J."  The  plaintiff  in  error  was  indicted  in  the  county  court 
of  Augusta  County  for  lewdly  associating  and  cohabiting  with  Mahala 
Miller.  He  was  found  guilty.  .  .  .  The  Commonwealth,  to  sustain  the 
issue  on  her  part,  proved  to  the  jury  that  the  defendant,  Andrew 
Kinney,  and  a  certain  Mahala  Miller,  on  the  1st  day  of  January.  1877, 
and  from  that  time  to  the  27th  day  of  August,  1877,  in  the  county  of 
Augusta  and  State  of  Virginia,  did  live  and  associate  together  as  man 
and  wife  ;  that  said  Andrew  Kinney  is  a  negro,  and  said  Mahala  Miller 
a  white  woman,  and  that  in  November,  1874,  they,  as  citizens  of  the 
State  of  Virginia,  regularly  domiciled  in  the  county  of  Augusta,  left 
their  own  State  for  the  purpose  of  being  married  in  the  District  of 
Columbia,  and  in  ten  days  thereafter  returned  to  this  State  to  live,  and 
have  since  lived  together  as  man  and  wife  in  said  count}'  of  Augusta. 
The  defendant,  to  sustain  the  issue  on  his  part,  proved  tliat  he  and  the 
said  Mahala  Miller  were  married  in  the  District  of  Columbia  on  the  4th 
day  of  November,  1874,  in  accordance  with  tlie  laws  of  said  district. 

1  Ace.  Scott V.  A.  G.,  II  r.  D.  128;  Poiidsford  v.  Joliii-soii,  2  IJIatehf.  .01  ;  Phillips  v. 
Madrid,  83  Me.  205, 22  Atl.  1 14  ;  Van  Voorliia  v.  Hriiitiiall,  8G  N.  Y.  18  ;  S.  r.  Shattuck, 
69  Vt.  403,  38  Atl.  81.  Contra,  Williams  v.  Oatcs,  5  Ir(\  L.  535;  Stull's  Estate,  183 
Pa.  625,  39  Atl.  16  (but  see  Van  Storeli  v.  Griffin,  71  Pa.  240,  nut  cited  in  the  later 
case) ;  Pennegar  r.  S.,  87  Tenn.  244.  And  see  Succession  ol  Hernandez,  46  La.  Aaa. 
962,  15  So.  461.  — E I). 

"^  Part  of  the  opinion  is  oniitted.  —  E». 


94  KINNEY   V.   COMMONWEALTH,  [CHAP.  VL 

The  court  .  .  .  instructed  the  jury  as  follows  :  "  That  the  said  mar- 
riage of  the  defendant  and  said  Mahala  Miller  was,  under  the  circum- 
stances proven,  but  a  vain  and  futile  attempt  to  evade  the  laws  of 
Virginia,  and  override  her  well-known  public  policy,  and  is  therefore 
no  bar  to  this  prosecution  ;  to  which  opinion  ...  the  defendant,  by 
his  counsel,  excepts."  .  .  • 

The  sole  question  submitted  by  this  bill  of  exceptions  for  the  adjudi- 
cation of  this  court  is,  Whether  the  alleged  marriage  celebrated  in  the 
District  of  Columbia,  "  in  accordance  with  the  laws  of  said  district," 
as  certified  in  the  certificate  of  facts,  is  a  bar  to  this  prosecution  ?     It 
is  conceded  that  a  marriage  in  this  State  between  a  white  person  and  a 
negro  is  void.     It  is  not  only  prohibited  by  the  statute  law,  but  pen- 
alties are  imposed  for  its  violation.     The  first  section  of  chapter  105, 
Code  1873,  provides  that  "  all  marriages  between  a  white  person  and 
a  negro,  and  all  marriages  which  are  prohibited  by  law  on  account  of 
eithe^-  of  the  parties  having  a  former  wife  or  husband  then  living,  shall 
be  absolutely  void  without  any  decree  of  divorce  or  other  legal  process." 
In  the  same  section  other  marriages  prohibited  by  law  therein  men- 
tioned, are  voidable  only ;  that  is,  declared  to  be  void  only  from  the 
time  they  shall  be  so  declared  by  decree  of  divorce  or  nullity.     These 
are  cases  of  marriages  within  the  prohibited  degrees  of  consanguinity 
or  affinity,  or  where  either  party  was  insane  or  incapable  from  physical 
causes.     Such  marriages  are  void  when  declared  to  be  void  by  decree 
of  divorce  or  nullity,  or  when  the  parties  are  convicted  under  the  third 
section  of  chapter  192,  which  denounces  certain  penalties  against  mar- 
riages of  parties  within  the  prescribed  degrees  of  consanguinity  or 
affinity.     But  marriage  between  a  white  person  and  a  negro  is  declared 
by  statute  to  be  absolutely  void  without  any  decree  of  divorce  or  other 
legal  process.     If,  therefore,  the  marriage  had  been  celebrated  in  this 
State  between  Andrew  Kinney,  who  is  a  negro,  and  Mahala  Miller, 
who  is  a  white  woman,  no  matter  by  what  ceremonies  or  solemnities, 
such  marriage  would  have  been  the  merest  nullity,  and  the  parties  must 
have  been  regarded,  under  our  laws,  as  lewdly  associating  and  cohabit- 
ing together,  and  obnoxious  to  the  penalties  denounced  by  our  statute 
against  this  gross  offence. 

Does  the  marriage  of  the  parties  in  the  District  of  Columbia,  where 
marriages  between  white  persons  and  negroes  are  not  prohibited,  present 
a  bar  to  this  prosecution  and  put  the  parties  on  any  diflerent  footing 
when  arraigned  before  our  tribunals  for  a  violation  of  the  laws  of  this 
State?  It  is  admitted  that  Andrew  Kinney  and  Mahala  Miller  had 
their  domicil  in  Augusta  County,  in  this  State;  that  they  remained  out 
of  the  State  only  ten  days  after  their  marriage,  and  returned  here,  and 
that  this  county  is  still  their  domicil. 

It  is  plain  to  be  gathered  from  the  whole  record,  if  not  indeed 
admitted,  that  these  parties,  knowing  they  could  enter  into  no  valid 
marriage  contract  in  this  State,  went  to  the  city  of  Washington  for 
the   purpose   of  evading   the   statute  law   of  this  State ;    were   there 


SECT.  III.]  KINNEY    V.   COMMONWEALTH.  95 

married,  and  in  a  few  days  returned  to  this  State.  The}'  never  changed 
nor  designed  to  change  their  domicil.  It  was  here  then  ;  it  is  liere 
now. 

The  important  question,  and  one  of  first  impression  in  this  State,  is : 
Does  the  marriage  in  the  District  of  Columbia,  made  infraudem  legis 
of  this  State,  protect  the  parties  in  a  prosecution  in  this  State  for  a 
violation  of  its  penal  laws  in  this  most  important  and  vital  branch 
of  criminal  jurisprudence,  affecting  the  moral  well-being  and  social 
order  of  this  State?  Must  the  lex  loci  contractus  or  the  lex,  domicilii 
prevail? 

There  can  be  no  doubt  as  to  the  power  of  every  country  to  make 
laws  regulating  the  marriage  of  its  own  subjects  ;  to  declare  who  may 
marry,  how  they  may  marry,  and  what  shall  be  the  legal  consequences 
of  their  marrying.  The  right  to  regulate  the  institution  of  marriage ; 
to  classify  the  parties  and  persons  who  ma}'  lawfully  marry ;  to  dissolve 
the  relation  b}-  divorce  ;  and  to  impose  such  restraints  upon  the  relation 
as  the  laws  of  God,  and  the  laws  of  propriety,  morality,  and  social 
order  demand,  has  been  exercised  by  all  civilized  governments  in  all 
ages  of  the  world. 

It  is  insisted,  however,  by  the  learned  counsel  for  the  plaintiff  in 
error,  in  the  ingenious  and  able  argument  which  he  addressed  to  this 
court,  that  conceding  the  power  of  ever}-  State  and  country  to  pass 
such  laws,  yet  they  never  act  extratei-ritoricd.,  but  must  be  confined, 
with  rare  exceptions,  to  such  marriages  as  are  contracted  and  consum- 
mated within  the  State  where  they  are  prohibited.  He  invokes  for  his 
client  in  this  case  the  rule  laid  down  by  jurists  and  text-writers,  that 
"  a  marriage  valid  where  celebrated  is  good  everywhere." 

This  is  undoubtedly  the  general  rule.  But  there  are  certain  excep- 
tions to  this  general  rule,  and  while  in  its  application  and  tlie  affirm- 
ance of  certain  exceptions  thereto,  there  was  for  a  long  time  much 
confusion  in  the  authorities  and  conflict  in  the  cases,  I  think  it  may 
now  be  affirmed  that  there  are  exceptions  to  this  general  rule  as  well 
established  and  authoritatively  settled  as  the  rule  itself^  .   .  . 

Whatever  conflict  of  authority  there  may  have  been  on  this  subject, 
it  may  now  be  affirmed,  since  the  decision  of  Brook  v.  Brook,  9  H.  L. 
C.  193,  that  in  England,  a  marriage  prohibited  by  law  in  that  country, 
between  parties  domiciled  there,  and  declared  by  act  of  Parliament  to 
be  absolutely  void,  is  invalid  tliere  no  matter  where  celebrated.  In 
this  country  the  same  doctrine  is  affirmed  in  North  Carolina,  Louisiana, 
and  Tennessee.  See  Williams  v.  Gates'  ex'or,  5  Ired.  R.  535  ;  State 
V.  Kennedy,  76  North  Car.  251  ;  State  v.  Ross,  7G  North  Car.  242  ; 
10  La.  Ann.  411,  Dupre  v.  Boulad's  ex'or. 

Whenever  the  question  has  arisen  in  tlio  Southern  States,  it  has  been 

held  that  a  marriage  between  a  white  person  and  a  negro,  althougli 

the  marriage  be  celebrated  in  a  State  where  such  marriages  are  not 

1  The  court  here  cited  Story,  Couflict  of  Laws  §  11.3  ;  Brook  v.  Brook,  9  IL  L.  C. 

193.  —  Ed. 


96  KINNEY   V.   COMMONWEALTH.  [CHAP.  VI. 

prohibited,  is  void  in  the  State  of  the  doraicil,  and  when  they  go  to 
another  State  temporarily,  and  for  the  purpose  of  evading  the  law,  and 
return  to  their  domicil,  such  marriage  is  no  bar  to  a  criminal  prosecu- 
tion. And  such  is  the  law  of  this  State.  It  is  now  so  declared  by 
statute.  See  Sess.  Acts  of  1877-8.  The  statute,  however,  was  passed 
after  the  marriage  of  the  parties  in  this  case.  But  without  such  statute, 
the  marriage  was  a  nullity.  It  was  a  marriage  prohibited  and  declared 
"  absolutely  void."  It  was  contrary  to  the  declared  public  law, 
founded  upon  motives  of  public  policy,  —a  public  policy  affirmed  for 
more  than  a  century  ;  and  one  upon  which  social  order,  public  morality, 
and  the  best  interests  of  both  races  depend.  This  unmistakable  policy 
of  the  legislature,  founded,  I  think,  on  wisdom  and  the  moral  develop- 
ment of  both  races,  has  been  shown  by  not  only  declaring  marriage 
between  whites  and  negroes  absolutely  void,  but  by  prohibiting  and 
punishing  such  unnatural  alliances  with  severe  penalties.  The  laws 
enacted  to  further  and  uphold  this  declared  policy  would  be  futile  and 
a  dead  letter  if  in  fraud  of  these  salutaiy  enactments,  both  races  might, 
by  stepping  across  an  imaginary  line,  bid  defiance  to  the  law,  by 
immediately  returning  and  insisting  that  the  marriage  celebrated  in 
another  State  or  country  should  be  recognized  as  lawful,  though 
denounced  by  the  public  law  of  the  domicil  as  unlawful  and  absolutely 
void.  No  State  will  permit  its  citizens  to  violate  its  laws  by  such 
evasions.  But  the  law  of  the  domicil  will  govern  in  such  case,  and 
when  they  return,  they  will  be  subject  to  all  its  penalties,  as  if  such 
marriage  had  been  celebrated  within  the  State  whose  public  law  they 
have  set  at  defiance. 

There  is  one  American  case  which  is  directly  opposed  to  the  principles 
herein  declared,  the  facts  of  which  are  precisely  the  same  as  in  the  case 
before  us.  It  is  the  case  of  Med  way  v.  Needham,  16  Mass.  R  157, 
which  was  strongly  relied  on  by  the  learned  counsel  for  the  plaintiff 
in  error  as  authority  to  govern  this  case.  But  I  think  that  case  is 
not  supported  by  authority  nor  grounded  on  any  sound  principles 
of  law.  That  was  the  case  of  a  marriage  between  a  white  person  and 
a  negro.  The  parties  were  domiciled  in  Massachusetts,  whose  laws 
at  that  time  prohibited  such  marriages.  They  went  into  Rhode  Island, 
where  such  marriages  were  lawful,  were  there  married,  and  returned 
to  Massachusetts.  The  Supreme  Court  of  that  State  held  the  marriage 
to  be  valid,  and  declared,  in  an  elaborate  opinion,  that  "  a  marriage 
which  is  good  by  the  laws  of  the  country  where  it  is  celebrated,  is  valid 
in  every  other  country  ;  and  although  it  should  appear  that  the  parties 
went  into  another  State  to  contract  such  marriage,  with  a  view  to  evade 
the  laws  of  their  own  country,  the  marriage  in  the  foreign  country  will 
nevertheless  be  valid  in  the  country  in  which  the  parties  live." 

In  commenting  on  this  case,  the  lord  chancellor,  in  Brook  v.  Brook 
supra  (219),  says  :  "I  cannot  think  it  is  entitled  to  much  weight,  for 
the  learned  judge  admitted  that  he  was  overruling  the  doctrine  of 
Huberus   and  other  eminent  jurists  ;  he  relied  on  decisions  in  which 


SECT.  III.]  KINNEY    V.   COMMONWEALTH,  97 

the  forms  onl}-  of  celebrating  the  marriage  in  the  country  of  celebration 
and  the  country  of  domicil  were  different ;  and  he  took  the  distinction 
between  cases  where  the  absolute  prohibition  of  marriage  is  forbidden 
on  motives  of  policy,  and  where  the  marriage  is  prohibited  as  being 
contrary  to  religion  on  the  ground  of  incest.  I,  myself,  must  deny 
the  distinction.  If  a  marriage  is  absolutely  prohibited  in  any  country 
as  being  contrary  to  public  policy  and  leading  to  social  evils,  I  think 
tiiat  the  domiciled  inhabitants  of  that  country  cannot  be  permitted,  by 
passing  the  frontier  and  entering  another  State  in  which  the  marriage 
is  not  prohibited,  to  celebrate  a  marriage  forbidden  by  their  own  State, 
and  immediately  returning  to  their  own  State,  to  insist  on  their 
marriage  being  recognized  as  lawful." 

Lord  Cranworth,  referring  to  the  same  case,  said:  "I  also  concur 
entirely  with  mj-  noble  and  learned  friend  that  the  American  decision 
of  Medwa}-  v.  Needham,  cannot  be  treated  as  proceeding  on  sound 
principles  of  law. 

'•  The  province  or  State  of  Massachusetts  positive]}-  prohibited  by  its 
laws,  as  contrary  to  public  polic}',  the  marriage  of  a  mulatto  with 
a  white  woman  ;  and  on  one  of  the  grounds,  pointed  out  by  Mr.  Storj-, 
such  a  marriage  ought  certain!}-  to  have  been  held  void  in  Massachu- 
setts, though  celebrated  in  another  province  where  such  marriages  were 
lawful." 

With  such  condemnation,  from  so  high  a  source,  of  this  decision 
as  authority,  and  when  it  is  opposed  b}-  the  decisions  of  our  sister 
Southern  States  above  referred  to,  and  contrary-  to  sound  principles  of 
law,  T  think,  though  a  case  exactly  in  point  upon  its  facts,  it  can  have 
but  little  weight  in  forming  our  judicial  determination  of  the  question 
before  us  in  this  case. 

There  is  another  American  case  also  relied  on  b}-  the  counsel  for  the 
plaintiff  in  error  for  the  doctrine  that  "  a  marriage  valid  where  cele- 
brated is  valid  everywhere."  It  is  a  Kentucky  case,  Stevenson  v.  Gra}-, 
reported  in  17  B.  Monr.  R.  193.  That  was  a  marriage  between  a 
nephew  and  his  uncle's  wife.  Such  a  marriage  was  prohibited  in  Ken- 
tucky, but  not  in  Tennessee.  The  parties  went  into  Tennessee,  and 
were  there  married  and  returned  to  Kentucky.  It  was  held  that  tlic 
marriage  was  valid  in  Kentucky.  But  it  is  to  be  noted  that  such 
marriages  are  not  declared  by  the  Kentuck}' statute  absolute!}'  void,  but 
voidable  only  —  that  is,  to  be  avoided  by  judgment  of  a  district  court 
or  court  of  quarterly  sessions.  The  reasoning  of  tlie  judge  who  de- 
livered the  opinion  of  the  court  in  that  case,  shows  that  he  treats  the 
case  of  a  marriage  voidable  only,  and  not  ipso  facto  void.  If  such 
marriage  has  been  declared  absolutely  void  by  the  Kentucky  statute, 
the  decision  of  the  court,  no  doubt,  would  have  been  different. 

In  the  seventh  edition  of  Story's  Conllict  of  Laws,  p.  178,  the 
editor  adds  a  section  in  which  he  says :  The  limitation  defined  by  Lord 
Campbell,  chancellor,  in  J5rook  >\  Brook,  is  certainly  characterized  by 
great  moderation  and  good  sense  ;  tluit  whih>  tlic  form  of  the  contract. 


98  KINNEY   V.   COMMONWEALTH.  [CHAP.  VL 

the  rites  and  ceremonies  proper  or  indispensable  for  its  due  celebration, 
are  to  be  governed  by  the  laws  of  the  place  of  the  contract  or  of  cele- 
bration, the  essentials  of  the  contract  depend  upon  the  lex  domicilii, 
the  law  of  the  country  in  which  the  parties  are  domiciled  at  the  time  of 
the  marriao-e,  and  in  which  the  matrimonial  residence  is  contemplated. 
Hence,  if  the  incapacity  of  the  parties  is  such  that  no  marriage  could 
be  solemnized  between  them  .  .  .  and,  without  changing  their  domicil, 
they  go  into  some  other  country  where  no  such  limitation  or  restriction 
exists!,  and  there  enter  into  the  formal  relation  with  a  view  to  return 
and  dwell  in  the  country  in  which  such  marriage  is  prohibited  by  posi- 
tive law,  it  is  but  proper  to  say  that  a  proper  self-respect  (of  the  State 
or  government  in  prohibiting  such  a  marriage)  would  seem  to  require 
that  the  attempted  evasion  would  not  be  allowed  to  prevail. 

I  have  thus  considered,  at  length,  the  authorities,  English  and 
American,  on  this  question,  because  it  is  one  of  first  impression  iu 
this  court,  and  because  it  is  a  question  which  materially  affects  public 
morality,  social  order,  and  the  best  interests  of  both  races.  The 
public  policy  of  this  State,  in  preventing  the  intercommingling  of  the 
races  by  refusing  to  legitimate  marriages  between  them,  has  been  illus- 
trated by  its  legislature  for  more  than  a  century.  Every  well-organized 
society  is  essentially  interested  in  the  existence  and  harmony  and 
decorum  of  all  its  social  relations.  Marriage,  the  most  elementary  and 
useful  of  all,  must  be  regulated  and  controlled  by  the  sovereign  power 
of  the  State.  The  purity  of  public  morals,  the  moral  and  physical 
development  of  both  races,  and  the  highest  advancement  of  our 
cherished  Southern  civilization,  under  which  two  distinct  races  are  to 
work  out  and  accomplish  the  destiny  to  which  the  Almighty  has  as- 
signed them  on  this  continent  —  all  require  that  they  should  be  kept 
distinct  and  separate,  and  that  connections  and  alliances  so  unnatural 
that  God  and  nature  seem  to  forbid  them,  should  be  prohibited  by 
positive  law,  and  be  subject  to  no  evasion. 

Upon  the  whole  case,  I  am  of  opinion  that  the  marriage  celebrated 
in  the  District  of  Columbia  between  Andrew  Kinney  and  Mahala  Miller, 
though  lawful  there,  being  positively  prohibited  and  declared  void  by 
the  statutes  of  this  State,  is  invalid  here,  and  that  said  marriage  was 
a  mere  evasion  of  the  laws  of  this  State,  and  cannot  be  pleaded  in  bar 
of  a  criminal  prosecution  here. 

If  the  parties  desire  to  maintain  the  relations  of  man  and  wife,  they 
must  change  their  domicil  and  go  to  some  State  or  country  where  the 
laws  recognize  the  validity  of  such  marriages. 

Upon  the  whole  case,  I  am  of  opinion  that  there  is  no  error  in  the 
judgment  of  the  circuit  court  affirming  the  judgment  of  the  county 
court,   and  that  both  be  affirmed  by  this  court. 

The  other  judges  concurred  in  the  opinion  of  Christian,  J. 

Judgment  affirmed.  ^ 

1  Ace.  S.  V.  Tutty,  41  Fed.  753;  Dupre  v.  Boulard,  10  La.  Ann.  411;  g.  v. 
Kennedy,  76  N.  C.  251.     But  see  Pearson  v.  Pearson,  51  Cal.  120.  —Ed. 


SECT.  III.]  DE   BAUFFREMONT   V.    DE   BAUFFREMONT.  99 


DE  BAUFFREMONT  v.   DE  BAUFFREMONT. 

Court  of  Paris.     1876  :    Court  of  Cassation.     1878. 
[Reported  Dalloz  Jurisprudence,  1878,  II.  1  ;   1878,  I.  201.] 

Henrietta  Valentine  de  Riquet,  countess  of  Caraman-Chima}', 
Belgian  by  birth,  married  the  Prince  de  Bauffremont,  a  French  subject. 
By  a  judgment  of  the  Civil  Tribunal  of  the  Seine,  April  7,  1874, 
rendered  upon  the  petition  of  Mine,  de  Bauffremont,  and  confirmed 
by  a  judgment  of  the  Court  of  Paris,  Aug.  1,  1874,  a  judicial  separa- 
tion was  decreed  between  the  spouses.  Afterwards,  on  Ma}'  3,  1875, 
Mme.  de  Bauffremont  became  naturalized  without  her  husband's  au- 
thorization, in  the  German  duchy  of  Saxe-Altenburg.  Then,  taking 
advantage  of  the  German  law,  which  admits  divorce,  and  it  would  seem 
considers  Catholic  spouses  judicially  separated  as  divorced,  she  married, 
on  October  24,  1875,  before  the  officer  of  civil  status  at  Berlin,  the 
Prince  de  Bibesco,  a  Roumanian  subject.  The  Prince  de  Bauffremont, 
before  the  Tribunal  of  the  Seine,  began  this  action  to  have  declared  null 
the  marriage  and  the  act  of  naturalization  of  which  we  have  spoken. 
This  petition  was  granted  by  a  judgment  of  March  10,  1876.^  The 
Princess  de  Bauffremont  appealed. 

The  Court.  Henrietta  Valentine  de  Riquet,  countess  of  Caraman- 
Chimay,  Belgian  by  birth,  became  French  according  to  Article  12  of 
the  Civil  Code,  by  her  marriage  with  the  Prince  de  Bauffremont,  a 
subject  of  France.  Since  judicial  separation  relaxes  without  destroy- 
ing the  tie  of  marriage,  the  judgment  of  separation  pronounced  in 
France  upon  her  demand  could  not  make  her  lose  the  nationality 
which  she  had  acquired  ;  she  remained  French  since  she  remained  the 
wife  of  the  Prince  de  Bauffremont.  Granting  that  she  is  freed  from 
the  duties  of  cohabitation,  and  that  from  this  relative  freedom  one 
may  conclude  (reserving  the  right  to  consider  motives  and  circum- 
stances) that  she  has  the  power  of  choosing  a  domicil  where  she 
pleases,  even  in  a  foreign  country,  it  does  not  follow  that  she  may 
likewise,  of  her  own  will  without  her  husbantl's  authorization,  change 
her  nationality.  The  French  law,  which  has  become  her  statute  per- 
sonal, remains  always  fixed  to  hor  person,  and  follows  her  wherever  she 
fixes  her  residence  or  her  domicil.  The  necessit}'  of  her  husband's 
authorization,  except  in  simple  acts  of  administering  her  property, 
is  a  legal  one,  as  a  result  of  the  power  with  which  the  husband  remains 
invested  after  a  judicial  separation.  The  change  of  nationality  forms 
no  exception  ;  all  the  more  where,  as  in  this  case,  the  wife  attempts 
it,  by  favor  of  a  foreign  law  not  her  own,  as  a  means  of  legally  chang- 
ing her  judicial  separation  into  a  divorce  against  her  husband's  will 

1  The  judgment  of  the  Trihunal  <>{  tho  Seine,  and  part  of  the  case  involving  a  ^lere 
question  of  procedure,  are  omitted.  —  Ki>. 


100  DE  BAUFFEEMONT  V.   DE  BAUFFREMONT.     [CHAP.  VI. 

and  against  the  provisions  of  the  law  of  France.  Supposing  this 
foreign  naturalization  possible,  the  effect  of  it  would  be  immediately 
annulled  by  the  marriage,  still  existing,  which  would  impose  lier 
husband's  nationality  on  her ;  she  would  therefore  have  changed  her 
nationality  only  to  regain  at  the  same  moment  (at  least  in  the  view 
of  the  law  of  France,  by  which  we  are  governed)  that  which  she  had 
vainly  tried  to  shake  off. 

If  the  act  of  naturalization  in  question  should  be  regarded  as  an 
act  of  public  law  which  a  foreign  State,  making  use  of  its  sovereign 
rights,  is  free  to  accomplish,  independently  of  marital  authorization, 
we  must  at  the  same  time  recognize  that  the  question  relative  to 
the  personal  capacity  of  the  woman,  as  a  married  woman,  to  contract 
a  second  marriage  before  the  dissolution  of  the  first,  is  put  beyond  the 
power  of  her  domicil  to  affect  it.  No  effect  can  be  made  on  the  prior 
rights  of  the  husband,  a  third  party,  by  this  act  of  naturalization; 
which  consequently  cannot  be  set  up  against  him,  no  matter  what  its 
regularity  and  force,  by  the  law  of  the  foreign  State,  may  be  in  other 
respects.  The  French  courts  cannot  consider,  either  to  declare  the 
act  valid  or  null,  the  reasons  of  reciprocal  respect  due  between  the 
two  sovereignties. 

It  matters  little,  in  fact,  whether  this  naturalization  could  regularly 
take  effect  either  with  or  without  the  husband's  consent.  Even  if  he 
had  given  express  authority  to  his  wife,  she  could  not  be  permitted 
to  invoke  the  law  of  the  State  where  she  had  obtained  her  new 
nationality,  to  avoid  the  application  of  the  French  law,  which  alone 
governs  the  effect  of  the  marriage  of  its  subjects,  and  declares  the 
tie  indissoluble.  It  is  a  question  of  the  most  solemn  and  important 
of  contracts,  which  not  only  cannot  be  broken  against  the  will  of  one 
of  the  contracting  parties,  but  never  even  by  the  mutual  consent  of  the 
spouses.  The  Princess  de  Bauffremont  would  vainly  have  acquired 
by  her  own  will  a  foreign  nationality  ;  her  husband,  remaining  French, 
would  vainly  have  given  her  express  authority  to  do  so.  The  recipro- 
cal character  and  the  indissoluble  tie  of  marriage  prevent  in  both  cases 
that  either  the  wife  alone  or  even  both  spouses  together  (which  is  not 
the  case  here)  should  elude  the  provisions  of  public  order  of  the  French 
law  which  governs  them. 

For  these  reasons,  the  judgment  appealed  from  is  amended  so  far  as 
it  declared  null  the  act  of  naturalization  of  May  3,  1875,  which  should 
only  be  declared  incapable  of  being  set  up  against  the  husband ;  in 
other  respects  the  judgment  is  confirmed. 

Mme.  de  Bauffremont  appealed. 

The  Court.  .  .  .  The  judgment  appealed  from  was  not  called  upon 
to  decide,  and  did  not  decide,  upon  the  regularity  and  legal  force, 
in  Germany  and  according  to  German  law,  of  these  acts  done  at  the 
sole  will  of  the  appellant.  Taking  only  the  point  of  view  of  the  French 
law,  which  in  fact  determines  the  question  and   is   binding   on  the 


SECT.  III.]  PRINCE    FREDERICK    C.    I'RINCESS    LUDWICJ.  101 

parties,  it  decided  that  even  had  she  been  authorized  by  her  husband, 
the  appellant  could  not  invoke  the  law  of  the  State  where  she  had 
obtained  a  new  nationality,  by  favor  of  which,  transformed  from 
her  condition  of  woman  separated  from  her  husband  to  that  of  one 
divorced,  she  could  elude  the  French  law,  which  alone  governs  the  effect 
of  the  marriage  of  French  subjects  and  declares  the  tie  indissoluble. 

Adopting  the  findings  of  the  judges  of  first  instance,  it  has  also 
recited  that  the  appellant  solicited  and  obtained  this  new  nationality 
not  to  exercise  the  riglits  and  fulfil  the  duties  which  would  be  hers  in 
establishing  her  domicil  in  the  State  of  Saxe-Altenburg,  but  with  the 
sole  purpose  of  escaping  the  prohibitions  of  the  French  law  by  con- 
tracting a  second  marriage,  and  then  abandoning  the  new  nationality 
as  soon  as  it  had  been  acquired. 

In  deciding  in  these  circumstances  that  acts  thus  done  in  fraud  of 
the  French  law  and  in  despite  of  obligations  previously  contracted  in 
France  could  not  be  set  up  against  the  Prince  de  Bauffremont,  the 
judgment  appealed  from  was  given  in  conformity  to  the  principles 
of  the  French  law  on  the  indissolubihty  of  marriage,  and  violated  no 
provisions  of  law  as  alleged  by  the  appeal. 

Appeal  dismissed. 


PRINCE    FREDERICK    OF    SAYN-WITTGENSTEIN-SAYN    v. 
PRINCESS    LUDWIG. 

Reichsgericht.     1880. 

[Reported  2  Entscheidungen  dcs  Reichsgerichts,  Civilsachen,  145.] 

Prince  Lcdwig  of  Sayn-Wittgenstein-Sayn  married  in  the  year 
1867  Maria  Lilienthal,  daughter  of  the  banker  Lilienthal  of  Berlin. 
The  marriage  was  celebrated  on  December  6,  1867,  at  Versoix,  in 
the  Canton  of  Geneva,  by  a  civil  act,  followed  in  France  by  a  religious 
marriage.  After  the  death  of  Prince  Ludwig  without  issue,  in  1876, 
Prince  Frederick,  his  brother,  l)rought  this  action  against  the  widow 
in  the  court  at  Ehrenbreitstein,  praying  that  the  defendant  might  be 
enjoined  from  any  longer  bearing  the  title  of  Princess  Sayn-Wittgen- 
stein-Sayn, and  from  using  the  coat  of  arms  of  the  princely  family  of 
Wittgenstein. 

The  plaintiff  based  his  case  on  the  ground  that  his  brother  and 
himself  belonged  to  the  high  nobility,  and  to  the  Prussian  peerage, 
while  the  defendant  was  of  the  lower  burgher  class  ;  the  marriage  of 
his  deceased  brother  with  her  was  therefore  a  misalliance  (Missheirat) 
according  to  tlie  family  laws  of  tlie  Wittgensteins,  as  well  as  acconling 
to  the  doctrines  of  the  German  law  and  of  the  law  of  the  order  of 
princes.     As  a  result,  the  defendant  did  not  enter  into  the  rank  and 


102  FRINGE    FKEDERICK    V.   PRINCESS   LUDWIG.  [CHAP.  VI. 

condition  of  her  husband,  and  had  not  the  right,  which  depends  upon 
membership  in  tlie  famil}',  to  use  the  title  and  the  arms. 

The  defendant  maintained  that  the  law  of  the  Canton  of  Geneva, 
in  which  her  husband  took  up  his  domicil  with  her  after  the  celebra- 
tion of  the  marriage,  should  be  applied.^ 

The  defendant  was  condemned  in  the  Court  of  First  Instance,  ac- 
cording to  the  plaintiff's  prayer,  and  the  decision  was  affirmed  by  the 
Appellate  Court  at  Arnsberg.  The  defendant  appealed  from  this  judg- 
ment ;  but  the  appeal  was  rejected  by  the  Reiclisgericht  for  the  fol- 
lowing reasons. 

The  Court.  In  agreement  with  the  judge  of  First  Instance  the 
Appellate  Court  held  that  for  the  decision  of  this  suit  the  Swiss  law, 
that  is,  the  existing  law  of  the  Canton  of  Geneva,  did  not  apply,  but 
the  German  law  of  the  Order  of  Princes.  This  application  is  entirely 
correct.  Whether  we  should  agree  with  the  reasons  put  forward  by 
the  judges  below  we  need  not  decide  ;  nor  need  we  further  examine 
the  appellant's  arguments  against  them,  since  their  application  in  the 
present  case  arises  from  the  special  nature  of  the  principles  here 
brought  in  question,  without  considering  what  principles  one  should 
regard  as  fundamental  for  the  decision  of  questions  involving  the  con- 
flicts of  laws  with  regard  to  questions  of  status  and  famil\-  law. 

The  late  husband  of  the  defendant,  Prince  Ludwig  of  Sayn-Wittgen- 
stein-Sayn,  belonged  without  doubt  to  the  high  nobility  of  Germany 
and  to  the  Prussian  peerage.  For  the  establishment  of  his  legal  rela- 
tions generally,  as  for  the  decision  of  the  question  with  what  person 
he  may  contract  a  marriage  having  full  civil  eflfects,  the  special  prin- 
ciples would  be  applied  which  are  established  in  the  law  of  the  Order 
of  Princes  for  the  high  nobilit}-,  the  independent  provisions  of  the 
family  law  of  the  Wittgensteins  and  the  common  prince-law  of  Ger- 
man}'. These  principles  are  in  their  subject  and  in  their  historical 
development  not  of  a  territorial  but  of  a  personal  nature,  and  deter- 
mine the  decision  of  the  legal  rights  of  peers  without  regard  to  their 
present  domicil,  even  if  it  be  outside  Germany.  The  State  of  Prussia 
decrees  to  the  peer,  wherever  he  is  domiciled,  as  part  of  and  along  with 
his  peerage,  the  common  German  prince-hiw  and  the  special  law  of 
peerage  as  a  personal  law.  This  is  a  substantial  incident  of  peerage, 
and  neither  Article  14  of  the  German  Constitution  nor  the  royal 
Prussian  statutes  regulating  the  legal  rights  of  peers  make  them  de- 
pendent on  domicil.  Even  should  the  foreign  State  in  which  a  Prus- 
sian peer  has  established  his  domicil  not  recognize  the  special  or  the 
common  German  prince-law  as  his  personal  law,  the  Prussian  State 
cannot  refuse  this  recognition.  For  the  Prussian  courts  in  determining 
the  legal  rights  of  members  of  „the  princely  family  of  Sayn-Wittgen- 
stein-Sayn  the  existing  prince-law  of  that  house  governs,  equally 
whether  the  member  in  question  has  established  his  domicil  in  Ger- 
many or  in  a  foreign  country.     For  the  decision  of  the  question,  what 

1  Only  so  much  of  the  case  as  concerns  this  a;round  of  defence  is  given.  —  Ed. 


SECT.  III.]  ANONYMOUS.  103 

■were  the  effects  of  the  marriage  contracted  by  the  defendant  with  her 
late  husband,  it  therefore  seems  to  be  of  no  importance  whether  the 
latter,  who  at  the  time  of  his  marriage  was  a  Prussian  subject,  had 
his  domicil  in  Geneva  or  in  Prussia.   .   .    . 

If  inquiry  is  made,  what  consequences  the  marriage  of  a  member 
of  the  high  nobility  with  a  woman  of  the  burgher  class  has,  there  can 
be  no  doubt  that  such  a  marriage,  so  far  as  the  ordinary  legal  pre- 
sumptions go,  is  a  complete,  true  marriage.  These  consequences,  how- 
ever, do  not  extend  to  all  civil  relations  ;  and,  in  particular,  the  wife 
here  does  not  enter  into  the  rank  of  her  husband,  but  retains  her 
former  rank.  She  does  not  participate  in  the  privileges  of  her  hus- 
band's rank  ;  she  is  not  empowered  to  use  the  princely  or  ducal  title 
and  arms  as  a  sign  and  representation  of  her  husband's  rank  and 
position  and  the  appurtenances  of  a  family  of  the  high  nobility. 


ANONYMOUS. 

Reichsgericht.     1887. 
[Reported  42  SeufferVs  Archiv,  303.] 

Petition  for  nullity  of  marriage.  The  parties,  both  German,  the 
husband  a  Protestant  and  the  wife  a  Catholic,  had  been  married  in 
Buenos  Ayres,  where  they  were  temporarily  resident,  by  a  German 
Evangelical  minister,  the  requirements  of  the  Argentine  Code  not 
having  been  complied  with.^ 

The  Court.  In  the  Appellate  Court  a  new  ground  of  complaint 
was  added,  that  the  marriage  had  not  been  celebrated  in  the  form  re- 
quired by  the  law  of  the  place  of  celebration,  namely,  Buenos  Ayres: 
the  fact  being  that  it  had  indeed  been  consecrated  by  the  resident 
pastor  of  the  German  Evangelical  congregation,  but  had  not  been  cele- 
brated directly  afterward  before  the  competent  Catholic  priest.  This 
ground  of  complaint  also  was  properly  rejected  by  the  Court  of  Appeal. 
It  is,  to  be  sure,  laid  down  by  some  writers  that  a  marriage  contract 
can  be  properly  completed  only  in  the  form  prescribed  by  the  law  of 
the  place  of  celebration,  (e.  r/.  by  von  Sichorcr,  Personenstand  und 
Eheschliessung,  p.  349  ;  von  Friodherg,  Kirchonrccht,  2d  ed.  §  15G, 
p.  349)  ;  but  tliis  opinion,  although  it  has  become  valid  for  marriages 
entered  into  within  German  territory  by  a  positive  enactment  in  §  41  of 
the  Reichsgesetzes,  February  6,  1875,  does  not  agree  with  the  princi- 
ples of  the°common  law  in  regard  to  the  local  sovereignty  of  principles 
of  law.  According  to  these  the  proposition  hnis  rffjit  actmn  is  valid 
also  in  the  case  of  a  marriage  contract:  this,  liowever,  allows  according 

1  This  short  fttsiteinent  of  f.irts  i.s  thiit  of  the  editor.  Tiic  discu.ssioii  by  the  court 
of  the  first  ground  of  nullity  alleged  is  omitted.  —  Eu. 


104  ANONYMOUS.  [CHAP.  VI. 

to  the  prevailing  view,  which  is  also  adopted  by  the  Reichsgericht 
(Entsch.  i.  323  ;  xiv.  184),  not  only  the  application  of  the  form  pre- 
scribed at  the  place  of  the  legal  action,  but  at  the  same  time  concur- 
rently the  form  of  the  law  wbich  is  otherwise  decisive  of  the  action 
in  question.  Therefore  it  is  properly  assumed  that  the  marriage  may 
be  legally  contracted  either  in  the  form  of  the  place  of  celebration  or 
in  that  of  the  place  which  is  decisive  for  the  personal  relations  of  the 
man.  Von  Bar,  Internat.  Recht,  p.  324  ff.  ;  Stobbe,  Deutsches  Privatr. 
(2d  ed.)  I.  §  31,  p.  222  ff.  ;  Dernburg,  Preuss.  Privatr.  I.  §  27  ;  III.  §  4, 
and  Pand.  I.  §  48,  p.  106. 

This  place  is  (according  to  the  common  law  of  Germany  as  held  by 
the  Reichsgericht,  in  agreement  with  the  prevailing  doctrine)  the 
domicil  of  the  husband.  He  who  will  attack  as  null  an  actually 
existing  marriage  entered  into  in  a  foreign  country  on  account  of 
a  legal  defect  of  form  of  celebration  must  above  all  things  distinctly 
allege  under  the  sovereignty  of  what  law  the  husband  personally  stood 
at  the  time  of  the  marriage.  In  other  words,  he  must  aver  either 
where  he  at  that  time  had  his  domicil ;  or  if  (according  to  the  law 
specially  deciding  the  question)  not  residence  but  nationality  should 
govern  the  case,  then  to  what  State  the  husband  at  the  time  owed 
allegiance.  When,  as  in  the  present  case,  no  averments  whatever  are 
made  upon  this  point,  the  judge  who  has  to  decide  the  petition  for 
nullity  (who  according  to  sections  568  and  13  of  the  Code  of  Procedure 
is,  for  married  parties  who  live  within  the  German  empire,  always  the 
judge  of  the  present  domicil  of  the  man,  or  in  case  of  doubt  every 
judge)  has  to  apply  his  own  law.  Here  it  is  applied  as  the  law  which 
is  concurrent  with  the  lex  loci  actus  in  governing  questions  of  form, 
according  to  the  meaning  of  the  rule  locus  regit  actum.  As  a  result 
of  this,  the  application  by  the  Oberlandesgericht  of  the  law  which  at 
the  time  of  the  marriage  prevailed  at  Hamburg,  was  cleaily  justified  ; 
though,  it  is  true,  the  reason  given  in  the  judgment  appealed  from,  — 
namely,  that  the  judge  in  the  case  of  suits  for  nullity  of  marriage  and 
for  divorce  must  always  apply  only  his  own  law,  —  was  subject  to 
serious  doubt. 

Furthermore,  the  assumption  of  the  Appellate  Court  that  by  the 
marriage  of  the  parties  in  1864,  in  Buenos  Ayres,  by  the  resident 
Evangelical  pastor,  the  requirements  of  the  law  then  prevailing  in 
Hamburg  as  to  the  form  of  the  marriage  contract  were  satisfied,  is 
in  agreement  with  the  deciding  principles  of  law.  The  first  point  was 
correctly  laid  down,  that  it  was  sufficient  in  Hamburg,  as  a  chiefly 
Protestant  State,  if  a  mixed  marriage  between  a  Protestant  man  and 
a  Catholic  woman  was  entered  into  only  in  the  form  of  the  common 
German  Protestant  church  law  ;  and  further,  it  is  wholly  beyond  a 
doubt  that  according  to  Protestant  church  law  the  validity  of  the 
marriage  contract  is  not  dependent  upon  the  fact  that  he  was  the 
proper  officiating  clergyman  (which  here,  by  the  way,  is  not  alleged), 
but  the  marriage  by  any  settled  minister  was  enough.     At  any  rate, 


SECT.  III.]  LHERMITE    V.   CHOISI.  105 

a  valid  mariiage  may  be  celebrated  by  one  who  is  not  deprived  of  the 
right  to  this  function  by  the  law  of  the  place  of  his  settlement ;  and 
there  was  no  such  deprival  by  the  Argentine  law,  according  to  the 
whole  spirit  of  its  provisions  on  this  subject. 


LHERMITE  v.  CHOISI. 

Civil.  Tribunal  of  the  Seine.     1899. 

[Reported  27  Clunet,  350.] 

The  Tribunal.  On  the  14th  of  September,  1889,  Charles  Alexis 
Choisi,  an  adult  thirty  years  of  age,  married  Mrs.  Josephine  Verheydt- 
Deveux  before  a  justice  of  the  peace  of  the  parish  of  Lafaj'ette,  in  the 
State  of  Louisiana;  and  on  the  12th  of  June,  1895,  he  had  this  union 
celebrated  by  a  religious  service  at  Bay  Saint-Louis  (America)  ;  but 
this  marriage  was  not  preceded  in  France  by  the  publications  required 
by  articles  63  and  170  of  the  Civil  Code.  Of  this  union  on  April  12, 
1890,  one  daughter  was  born,  Hermance-Augustine,  called  Lucy. 
Charles  Alexis  Choisi  died  on  June  19,  1897,  at  Pearlington,  in  the 
State  of  Mississippi.  His  sisters,  Mmes.  Lherraite  and  Huau,  have 
brought  against  his  widow  an  action  to  have  his  marriage  declared 
null  as  clandestine,  and  consequently  to  have  his  daughter  excluded 
from  the  succession  to  his  mother,  Mme.  Choisi. 

It  is  not  denied  that  the  marriage  of  Charles  Alexis  Choisi  was  cele- 
brated according  to  the  accustomed  forms  in  the  country  where  it  took 
place.  The  suit  for  nullity,  according  to  the  terms  of  the  demand,  was 
b^sed  only  on  the  violation  of  Article  170  of  the  Civil  Code.  French- 
men may  marry  abroad  on  condition  of  making,  in  France,  the  pub- 
lications prescribed  by  our  Code ;  it  is  necessary  to  discover  the 
punishment  for  breach  of  this  condition  in  order  to  reach  the  proper 
solution  of  this  case.  The  spouses  not  having  fulfilled  the  condition, 
are  evidently  subject  to  the  penalty  established  by  Article  192,  that  is, 
a  fine  in  proportion  to  their  fortune  ;  but  does  it  also  follow  that  the 
marriage  is  null  ?  In  questions  of  marriage,  nullity  is  not  to  be  declared 
by  implication  ;  hence  in  the  absence  of  an  express  provision  attaching 
the  penalty  of  nullity  to  the  failure  to  observe  a  formality  that  does  not 
go  to  the  essence,  it  is  not  permissilile  to  annul  a  contract  so  solemn. 
Article  170  provides,  it  is  true,  thai  the  marriage  shall  be  valid  if  it 
was  preceded  ]>y  publication,  l^ut  it  does  not  expressly  pronounce  it 
null  if  this  condition  is  not  fulfilled,  and  one  cannot  infer  it  by  an 
argument  a  contrario.  Consequently  the  mere  omission  of  publication 
in  France  does  not  cause  nullity  of  a  marriage  celebrated  abroad. 

It  would  not,  however,  be  the  same  if  the  spouses,  in  omitting  the 
publication  in  France,  had  the  purpose  of  keeping  their  union  concealed 
from   the  eyes  of   the  French  putilic.       It  appears   ])y  the  statement 


106  LHERMITE   V.   CHOISI.  [CHAP.  VL 

of  their  case  at  the  hearing  that  the  plaintiffs  rel}'  upon  tliis  clandes- 
tinity  ;  and  moreover  it  alone  can  give  them  a  cause  of  action  by 
Article  191,  since  no  text  gives  collaterals  the  right  to  rely  on  the  mere 
failure  to  carry  out  Article  170.  Under  these  conditions  it  is  proper 
to  consider  whether  the  circumstances  which  preceded,  accompanied, 
and  followed  the  celebration  of  the  marriage  in  question  show  on  the 
part  of  the  spouses  the  fixed  intention  to  perpetrate  a  fraud  on  their 
national  law. 

It  is  shown  by  the  documents  in  the  case  that  Choisi  left  France  in 
1884,  to  establish  himself  in  America,  with  the  consent  of  his  father, 
who  furnished  him  the  money  for  his  journey  and  continued  for  several 
years  to  send  him  aid.  He  found  a  situation  in  Louisiana,  where  he 
fixed  his  principal  establishment.  After  that  Madame  Verheydt- 
Deveux,  with  whom  he  had  lived  in  concubinage  at  Paris  since  1882, 
came  to  join  him.  Furthermore  it  is  proved  that  Choisi  before  being 
married  by  a  public  official  to  Mme.  Deveux,  in  1889,  carried  out 
formalities  which  show  that  the  intention  of  marriage  had  been  duly 
published.  He  seems  to  have  done  the  same  before  the  religious  cere- 
mony of  June  12,  1895.  Finally,  up  to  the  death  of  Choisi  the  spouses 
had  possession  of  a  status  that  conformed  to  their  act  of  marriage  ;  and 
the  child,  the  issue  of  their  union,  appears  always  to  have  been  treated 
as  a  legitimate  child. 

It  results  from  the  evidence  stated  that  Choisi  certainl}'  did  not 
leave  France  with  the  purpose  of  marriage,  to  escape  the  provisions  of 
the  French  law.  At  the  time  of  the  marriage  he  had  long  lived  in 
Louisiana,  and  had  not  preserved  a  domicil  in  France.  His  union, 
surrounded  by  the  formalities  required  in  that  country,  was  not  clan- 
destine, and  in  the  eyes  of  every  one  gave  him  at  once  the  quality  of 
legitimate  husband  of  Mme.  Verheydt-Deveux.  Under  these  circum- 
stances it  is  impossible  to  find  that  Choisi,  who  had  reached  the  age 
when  he  could  marry  without  his  mother's  consent,  had  the  fixed  inten- 
tion, in  failing  to  have  actes  respectueax  notified,  of  concealing  his 
marriage  from  the  Frenc-h  public,  and  of  perpetrating  a  fraud  upon  his 
national  law  ;  above  all,  since  that  law  does  not  pronounce  the  nullity  of 
a  marriage  contracted  by  a  son  in  defiance  of  the  provisions  which  re- 
quire acMs  respectueux. 

In  such  a  situation  the  tribunal  would  commit  an  inconceivable 
excess  of  rigor,  in  spite  of  the  serious  wrongs  of  Choisi  toward  his 
famil}-,  if  it  allowed  an  action  which  would  do  so  profound  an  injury  to 
the  status  of  a  young  girl,  a  minor,  who  has  up  to  this  time  enjoyed 
the  privileges  of  a  legitimate  child. 

For  these  reasons  declares  Mmes.  Lhermite  and  Huau  and  their 
husbands  proper  parties  to  sue,  but  their  suit  not  maintainable  ;  and 
disQ)isses  the  suit  with  costs.-' 

'^  Ace.  26  Cliinet,  1042  (Brussels,  8  Dec.  '98).  Where  a  desire  to  evade  the  national 
law  is  shown,  the  marriajie  is  invalid.  21  Clunet,  1074  (Austria,  26  Apr.  '92)  ;  26 
Clunet,  799  (Paris,  3  March,  '98).  —  Ed. 


SECT.  IV.]  SHAW    V.    GOULD.  107 

SECTION  IV. 

LEGITIMACY    AND    ADOPTION. 


SHAW  V.    GOULD. 

House  of  Lords.     18G8. 
[Reported  Law  Reports,  3  English  mid  Irish  Appeals,  55.] 

John  Wilsox,  of  Stensou,  in  the  county  of  Derby,  made  his  will, 
dated  the  27th  of  February,  1832  (duly  executed  to  pass  real  estate), 
and  after  directing  payment  of  debts,  etc. ,  bequeathed  to  trustees  one 
moiety  of  his  personal  estate  in  trust  for  his  great-niece,  Elizabeth 
Hickson,  for  her  life,  and  after  her  death  upon  certain  trusts  for  the 
benefit  of  her  child,  or  children,  or  issue  ;  and  in  case  she  should 
not  have  any  child  or  issue,  upon  trust  for  his  nephew,  Ambrose 
Moore,  his  executors,  etc.  He  devised  his  real  estate  to  trustees 
during  the  life  of  his  great-niece,  Elizabeth  Hickson,  for  her  separate 
use,  remainder  to  the  trustees  for  500  years,  to  raise  portions  for  her 
younger  children,  and,  subject  thereto,  to  the  first  son  of  tlie  body  of 
the  testator's  said  great-niece  lawfully  begotten,  and  the  heirs  of  his 
body,  etc.,  remainder  to  every  other  son  of  the  body  of  his  said  great- 
niece  lawfully  begotten,  and  his  heirs  successively,  etc.,  remainder  to 
the  use  of  the  daughters  of  Elizabeth  Hickson  lawfully  begotten,  as 
tenants  in  common  in  tail,  remainder  to  the  use  of  Ambrose  Moore 
for  life,  remainder  to  his  first  and  other  sons  in  tail. 

On  the  10th  of  June,  1828,  Elizabeth  Hickson,  being  then  about 
sixteen  years  of  age,  was  induced  by  the  fraud  of  a  person  named 
Buxton,  to  contract  a  marriage  with  him.  The  marriage  was  never  con- 
summated, and  for  his  fraudful  act  Buxton  was  indicted,  and  convicted, 
and  sentenced  to  three  years'  imprisonment.  No  formal  dissohition  of 
this  fraudulently  procured  marriage  ever  took  place,  and  in  December, 
1838,  a  formal  deed  of  separation  was  executed  b}'  Buxton  in  consider- 
ation of  a  sum  of  money  then  paid  to  him,  and  of  the  grant  of  an 
annuity  for  life.  In  1844,  a  Mr.  John  Shaw,  wiio  was  then  studying 
for  admission  to  the  p:iighsh  Bar,  addressed  proposals  of  marriage  to 
the  lady,  who,  notwithstanding  wliat  liad  passed,  still  continued  to  be 
called  Elizabeth  Hickson,  and  his  proposals  were  favorably  received, 
but  it  was  doubted  whether  any  'awful  marriage  could  take  place 
between  them  until  that  which  had  once  been  .solemnized  with  liiixton 
was  formally  dissolved. 

liuxton,  after  undergoing  his  sentence,  had  cohabited  in  the  coiiiilv 
of  Derby  with  one  Sarah  Lant.  A  suit  for  a  divorce  on  the  giound  of 
adultery  was,  in  June,  1814,  instituted  by  Klizabeth  Buxton,  or  Hick- 


108  SHAW  V.    GOULD.  [CHAr.  VI. 

son,  in  the  Arches  Court  of  Canterbury,  but  was  not  persevered  with. 
Neootiations  were  then  opened  with  Buxton  to  induce  liim  to  go  to 
Scotland  for  a  time  necessary  to  give  the  Scotch  courts  jurisdiction 
in  a  divorce  suit.  These  negotiations  resulted  in  an  agreement  that 
Buxton  should  go  to  Scotland,  and  remain  there  a  certain  time.  He 
was  to  receive  £40  for  his  expenses :  in  case  he  should  be  divorced  he 
was  to  receive  £250  within  three  months  from  the  death  of  a  person 
named  in  the  agreement,  with  interest  thereon  until  that  time  ;  this 
sum  "  to  be  forfeited  if  lie  gave  or  caused  to  be  given  such  information 
as  would  be  prejudicial  to  the  divorce."  He  was,  on  the  divorce  being 
pronounced,  to  receive  a  farther  sum  then  in  the  hands  of  the  lady's 
trustees,  to  retain  his  annuity,  and  if  he  had  to  stay  in  Scotland  more 
than  eight  weeks  he  was  to  receive  £5  a  week  in  addition.  At  the 
end  of  November,  1844,  Buxton  went  to  Scotland,  and  took  up  his 
residence  first  at  Dumfries,  and  then  at  the  neighboring  village  of 
New  Abbey,  where  he  continued  until  the  end  of  Januar}',  1845.  On 
the  16th  of  January-,  1845,  he  was  served  with  a  summons  in  a  suit 
for  a  divorce  issued  out  of  the  Court  of  Session,  at  Edinburgh,  at  the 
suit  of  Elizabeth  Buxton.  This  suit  was  not  prosecuted  to  a  decree, 
but  another  was  commenced  in  November,  1845,  to  which  Buxton  put 
in  defences  that  he  and  his  wife  were  natives  of  England,  that  the 
marriage  was  English,  that  the  proper  domicil  of  the  parties  was 
England,  and  that  the  Scotch  court  had  no  jurisdiction  to  pronounce 
a  divorce.  The  court,  however,  proceeded  with  the  suit,  in  which  a 
decree,  declaring  the  marriage  dissolved  on  the  ground  of  adultery, 
was  pronounced  in  March,   1846. 

In  June,  1846,  John  Shaw  and  Elizabeth  Hickson  were  in  due  form 
married  in  Scotland.  Mr.  Shaw,  instead  of  returning  to  England  and 
coming  to  the  English  Bar,  became  an  advocate  at  the  Bar  of  Scotland, 
and  was  thenceforth  domiciled  in  that  country.  He  resided  in  that 
country  up  to  the  time  of  his  death,  which  happened  in  September, 
1852.  Buxton,  who  had  at  once  returned  to  England,  pre-deceased 
him  b}'  several  months.  There  were  three  children  of  this  union,  the 
appellants  in  the  present  case.  Mrs.  Sliaw  died  on  the  28th  of  Jul}-, 
1863. 

On  the  3rd  of  July,  1865,  the  appellants,  by  their  next  friend, 
presented  a  petition  to  the  Lord  Chancellor,  praying  for  maintenance 
out  of  the  trust  funds  which  had  been  paid  into  court  under  the 
Trustee  Relief  Act.  On  the  14th  of  March,  1865,  Ambrose  Moore, 
and  other  parties,  claiming  to  be  interested  in  these  funds  in  ease  the 
appellants  should  be  declared  not  entitled  to  them,  presented  a  petition 
in  the  nature  of  a  cross-petition,  setting  forth  their  own  claims,  and 
denying  those  of  the  appellants,  alleging  that  the  appellants  were  not 
the  children  lawfuUv  begotten  of  the  said  Elizabeth  Hickson,  for  that 
she  still  continued  the  wife  of  Buxton,  the  divorce  from  him  having 
been  obtained  b}'  collusion,  and  being  in  itself  invalid  for  the  purpose 
of  dissolving  an  English  marriage. 


SECT.  IV.]  SHAW    V.    GOULD.  109 

The  two  petitions  came  on  together  for  hearing  before  Vicc-Chan- 
cellor  Kindersle}-,  who,  on  the  7th  of  December,  1865,  made  an  order 
refusing  the  petition  of  the  appellants,  and  directing  that  the  funds  in 
court  should  be  applied  for  the  benefit  of  the  respondents.  This  was 
the  order  appealed  against.^ 

Lord  Cranwortit.  .  .  .  If  the  parties  in  this  case  had  been  Scotch, 
and  not  English,  and  if  all  which  occurred  had  occurred  not  in  England 
but  in  Scotland,  there  would,  I  presume,  have  been  no  question  on  the 
subject.  If  Thomas  Buxton,  being  a  domiciled  Scotchman,  had  married 
in  Edinburgh,  Elizabeth  Hickson,  being  a  domiciled  Scotchwoman,  and 
afterwards,  while  their  Scotch  domicil  continued,  she  had  obtained  a  de- 
cree of  divorce  in  the  Court  of  Session,  and  then  had  married  John  Shaw, 
the  issue  of  that  marriage  would  certainly  have  been  legitimate.  The 
argument  of  the  appellants  is,  that  the  consequence  must  be  the  same, 
though  the  parties  were  at  the  time  of  the  first  marriage  domiciled  in 
England,  and  were  married  there.  The  question,  it  is  contended,  is, 
whether,  when  the  second  marriage  was  contracted,  the  parties  to  it 
had  the  capacity  to  contract  marriage  ;  in  other  words,  whether  the 
eflfect  of  the  divorce  was  to  enable  them  to  enter  into  a  valid  contract 
of  marriage,  which,  but  for  the  divorce,  they  certainly  could  not  have 
entered  into.  The  whole,  therefore,  turns  on  the  validity  of  the 
divorce.  Now,  the  law  of  Scotland  seems  clear  that  a  residence  in 
Scotland  for  forty  days  makes  that  country  the  domiciliion  fori  of 
any  person  so  residing  in  the  country,  in  which,  for  the  purposes  of 
litigation,  he  is  to  be  treated  as  being  domiciled.  And  it  is  assumed 
that  this  is  true  whatever  be  the  nature  of  the  litigation  ;  that  it  holds 
equally  in  cases  the  decision  in  wliich  may  involve  the  personal  status 
of  those  who  may  claim  through  the  litigant  parties  ;  so  also  where  it 
is  a  mere  dispute  between  the  litigant  parties  themselves.  Taking 
this,  however,  to  be  the  undoubted  law  of  Scotland,  the  question  is, 
whether  that  principle  is  one  which  this  country  is  bound  to  recognize. 
I  think  it  is  not. 

The  facts  of  this  case  do  not  raise  the  question  as  to  what  would 
have  been  the  status  of  these  children  if  Buxton  and  Elizabeth  Hick- 
son,  though  married  at  Manchester,  had  always  been  Scotch  persons, 
and  had  always  lived  in  Scotland  ;  or  even  what  it  would  have  been 
if,  before  the  proceedings  for  the  divorce,  Buxton  had  actually  bona 
fide  quitted  England  permanently,  and  established  himself  in  Scotland, 
HO  as  to  have  acquired  a  Scotch  domicil  for  all  intents  and  purposes. 
It  may  be  that  in  these  circumstances  the  courts  [of  this  country  would 
recognize  the  status  of  these  children,  so  as  to  entitle  them,  after  the 
(katii  of  their  mother,  to  the  fund  given  to  her  children  ;  which  no 
doubt  must  be  construed  as  meaning  her  legitimate  children.  lUit  on 
that  point  I  express  no  opinion.   .    .    . 

The  important  differences  on   the  subject  of  marriage  and  divorce 
which  exist  in  the  different  parts  of  the  United  Kingdom  often  give 
1  Arguments  of  counsel  and  parts  of  the  opinions  are  omitted.  —  Eu. 


110  SHAW  V.   GOULD.  [CHAP.  VL 

rise  to  perplexing  difficulties,  and  exhibit  a  state  of  our  law  little 
creditable  to  us.  But  these  difficulties  make  it  more  than  usually  in- 
cumbent on  those  who  have  to  administer  the  law  to  take  care  that 
wherever  a  clear  line  has  been  drawn  by  judicial  decision  the  course 
which  it  has  marked  out  should  be  rigidly  followed.  Now,  whatever 
be  the  difficulties  in  such  cases  as  the  present,  I  think  the  doctrine 
that  no  divorce  in  Scotland  resting  merely  on  a  forum  domicilii,  had, 
at  all  events  before  the  passing  of  our  English  Divorce  Act  in  1857, 
any  effect  in  England  on  the  validity  of  an  English  marriage,  is  es- 
tablished on  the  highest  authority.   .   .   .^ 

These  cases  clearly  decide  the  one  now  before  the  House,  for  if  the 
first  marriage  here  was  not  dissolved  there  could  not  have  been  a 
second  marriage.  Till  the  first  was  dissolved  there  was  no  capacity 
to  contract  a  second.  If  after  the  second  marriage  Buxton  and 
Elizabeth  had  again  cohabited,  and  there  had  been  issue,  that  issue 
would  certainly  have  been  legitimate  by  the  law  of  England,  and  it 
cannot  be  argued  that  the  issue  of  both  unions  could  share  together. 

The  view  which  I  take  of  this  case  relieves  me  from  the  necessity 
of  considering  whether  the  resort  to  Scotland  for  the  purpose  of  tlie 
divorce,  and  the  arrangements  made  among  the  parties  for  bringing 
about  that  object,  were  or  were  not  of  such  a  character  as  to  taint 
the  whole  of  the  proceedings  with  fraud  ;  I  am  not  at  all  satisfied  that 
they  were,  but  I  am  glad  to  be  relieved  from  tlie  necessity  of  deciding 
on  such  a  ground. 

There  is  only  one  farther  observation  which  I  decide  to  make  :  it  is 
this  :  In  saying  that  the  Scotch  courts  have  no  power  to  dissolve  an 
English  marriage  where  the  parties  have  only  gone  to  Scotland  for  the 
purpose  of  obtaining  there  a  domicilium  fori,  I  do  not  mean  to  express 
any  opinion  as  to  what  might  be  the  effect  of  a  divorce  so  obtained 
considered  merely  as  a  Scotch  question.  In  the  anomalous  state  of 
our  laws  relating  to  marriage  and  divorce,  it  may  be  that  such  a  pro- 
ceeding may  be  valid  to  the  north  of  the  Tweed,  but  invalid  to  the  south. 
And  I  am  painfully  sensible  of  the  inconveniences  which  may  result 
from  such  a  state  of  the  law.  But  it  must  be  for  the  legislature  to  set  it 
right.  The  authorities  seem  to  me  to  show  clearly  that  whatever  may 
be  the  just  decision  of  the  Scotch  courts  in  such  a  case  as  the  present, 
on  this  subject  of  divorce  according  to  Scotch  law,  it  is  one  in  which 
this  country  cannot  admit  any  right  in  them  to  interfere  with  the  in- 
violability of  an  English  marriage,  or  with  any  of  its  incidents.  To 
do  so  would  be  to  allow  a  prejudice  to  English  law  to  be  created  by 
the  decisions  of  what,  for  this  purpose,  we  must  call  a  foreign  law, 
thus  going  beyond  what,  in  the  passage  cited  from  Huber,  any  country 
is  called  on  to  do. 

On  these  short  grounds  I  am  of  opinion  that  there  was  no  foundation 
for  this  appeal,  and  I  move  your  Lordships  that  it  may  be  dismissed. 

1  Lord  Cranworth  here  cited  Lolley's  Case,  R.  &  R.  237,  2  CI.  &r.  567;  Conway  v 
Beazley,  3  Hagg.  Ecc.  639  ;  Dolphin  v'.  Robins,  7  H.  L.  C.  390.  —  Ed. 


SECT.  IV.]  SHAW    V.    GOULD.  Ill 

Lord  Chelmsford.  .  .  .  Whether  the  appellants  answer  the  de- 
scriptions respectively  of  ''  sou  lawfully  begotten,''  and  of  "children," 
depends  upon  whether  their  parents  were  lawfully  married  ;  and  this 
again  depends  upon  the  effect  of  a  divorce  in  Scotland  dissolving  the 
marriage  of  their  mother  with  Thomas  Buxton  in  England.  .   .   . 

Vice-Chancellor  Kiudersley,  in  giving  his  judgment  against  the 
validity  of  marriage,  said,  '•  that  to  assert  the  validity  of  the  Scotch 
divorce,  upon  which  alone  the  validity  of  the  marriage  with  Shaw 
depends,  is  to  assert  that  the  Court  of  Session  is  not  bound  by  the 
principle  of  international  law  ;  that  all  questions  as  to  the  validity,  or 
incidents,  or  consequences  of  a  marriage,  are  to  be  decided  according 
to  the  lex  loci  contractus^  i.  e.,  the  law  of  the  countr}-  where  it  was 
solemnized." 

But  in  a  suit  for  a  divorce  the  validity  of  the  marriage  is  not  in 
question,  and  the  violation  of  the  marriage  contract  can  hardly  be 
called  one  of  the  "  incidents"  or  ''  consequences  "  of  it.  If  a  divorce 
is  to  be  regarded  as  a  remedy  for  the  breach  of  the  matrimonial  con- 
tract, it  is  a  general  principle  of  international  law  that  all  remedies 
depend  upon  the  lex  for  i^  and  not  on  the  lex  loci  contractus. 

A  question  of  greater  difficulty  which  has  been  argued  in  this  case 
is  :  What  is  the  effect  of  a  Scotch  divorce  upon  an  p]nglish  marriage, 
where  the  married  parties  do  not  afterwards  become  domiciled  in 
Scotland,  nor  have  resorted  thither  with  the  design  of  invoking  the 
jurisdiction  of  the  court,  but  where,  happening  to  be  in  the  country, 
one  of  them  applies  for  and  obtains  a  decree  of  divorce  ? 

Since  the  decision  in  LoUey's  Case  the  courts  of  Scotland  have 
from  time  to  time  asserted  and  exercised  a  jurisdiction  to  dissolve 
marriages  which  have  taken  place  in  England,  and  elsewhere  than  in 
Scotland,  where  the  parties  to  them  had  acquired  no  permanent  domi- 
cil  in  that  country,  but  had  merely  continued  there  a  sufficient  time 
to  give  the  courts  jurisdiction.  These  cases  have  never  been  ap- 
pealed to  this  House,  so  as  to  raise  the  question  of  the  validity  of  such 
divorces  in  a  form  to  require  your  Lordships  to  decide  upon  the  exist- 
ence of  the  jurisdiction  according  to  the  principles  of  Scotch  law.  1 
cannot,  therefore,  subscribe  to  the  opinion  expressed  by  my  noble 
and  learned  friend.  Lord  Cranworth,  in  Dolphin  ik  Robins,  "  that  it 
must  be  taken  now  as  clearly  established  that  the  Scotch  court  has 
no  power  to  dissolve  an  English  marriage  where  the  parties  are  not 
really  domiciled  in  Scotland." 

But  whatever  opinion  may  be  ultimate!}'  entertained  as  to  the  extent 
of  the  power  of  the  Scotcii  courts  to  dissolve  English  marriages,  the 
validity  of  the  divorce  of  the  appellants'  mother  from  Buxton  cannot 
be  admitted,  if  it  was  obtained  by  concert  or  collusion.^   .   .    . 

It  is  possible  that  the  Scotch  courts  might  not  have  entertained  the 
same  view  of  the  question  of  collusion  which  I  have  formed.  But 
even  if  they  had,  it  appears  from  the  evidence  of  the  Scotch  advocates 

1  Lord  Clielm.sford  held  the  divorce  collusive.  —  Ed. 


112  SHAW  V.    GOULD.  [CHAP.  VI. 

produced  in  this  case  that,  according  to  the  law  of  Scotland,  reduction 
of  a  decree  of  divorce  upon  the  ground  of  collusion  cannot  be  pro- 
nounced after  a  year  and  a  day  from  the  date.  I  suppose,  therefore, 
that  the  Scotch  courts  would  sustain  the  decree  of  divorce,  and  would 
hold  the  subsequent  marriage  to  be  valid  if  they  were  brought  into 
question  before  them.  The  counsel  for  the  appellants  therefore  con- 
tend that  the  decree  of  divorce  being  irreversible,  the  marriage  of  the 
parents  of  the  appellants  was  valid,  and  the  status  of  legitimac}'  of 
the  appellants  being  established  in  Scotland  must  be  recognized 
everywhere. 

They  farther  argued  that,  even  assuming  the  marriage  to  be  invalid, 
the  appellants  might  still  be  legitimate.  They  ground  this  argument 
upon  the  law  of  Scotland,  "  which'"  (according  to  the  evidence  of  the 
Scotch  advocates,  to  whom  I  have  previously  referred),  "  from  con- 
siderations of  expediency  and  humanit}-,  adopted  the  rule  of  the  canon 
law,  which  recognized  the  legitimacy'  of  children  born  of  a  putative 
marriage,  —  that  is,  a  marriage  regular  and  solemn  in  point  of  form, 
but  null  in  law,  because  of  the  existence  of  an  impediment  such  as 
the  prior  existing  marriage  of  one  of  the  parties,  both  or  either  of  the 
parties  being  ignorant  of  the  existence  of  the  prior  marriage." 

The  authority  of  text  writers  was  referred  to  upon  this  point,  all  of 
whom  confine  the  ignorance  which  renders  children  of  a  void  marriage 
legitimate  to  ignorance  of  some  fact  by  the  parents.  In  the  present 
case  there  was  no  fact  bearing  on  the  validity  of  the  second  marriage 
unknown  to  either  of  the  parties  to  it.  They  drew  their  conclusions 
from  known  facts,  and  acted  upon  their  own  judgment  as  to  the 
correctness  of  the  advice  given  them  upon  the  subject  of  the  decree 
of  divorce.  Although  they  ma}'  have  proceeded  bo7ia  fide  upon  this 
advice,  still  their  case  is  not  brought  within  the  principle  of  the  law  as 
laid  down  both  by  the  evidence  and  in  the  text  writers,  as  the  igno- 
rance imputed  is  not  of  fact,  but  of  law. 

But  if  a  constructive  legitimacy  of  this  kind  would,  under  the  cir- 
cumstances, have  arisen  in  Scotland,  I  cannot  think  that  we  could  be 
bound  to  recognize  it  so  far  as  to  qualify  the  offspring  of  a  void  mar- 
riage to  take  under  the  description  of  "  children  "  in  an  English  will. 

My  opinion  in  this  case  is  founded  entirel}'  upon  the  peculiar  cir- 
cumstances attending  it ;  the  first  marriage  having  taken  place  in 
England  between  parties  having  an  English  domicil  which  they  never 
changed,  and  the  divorce  in  Scotland  having  been  obtained  b}'  pre- 
concerted arrangement,  the  parties  resorting  in  the  Scotch  courts  for 
the  sole  purpose  of  making  it  instrumental  to  the  attainment  of  their 
objects.  If  this  does  not  amount  to  collusion  in  the  sense  in  which 
that  term  appears  to  have  been  employed  in  some  cases  of  this  de- 
scription, I  do  not  think  that  the  tribunals  of  this  country  can  regard 
a  divorce  thus  obtained  as  binding  on  their  judgment.  It  seems  to 
me  that  this  case  cannot  be  distinguished  from  that  of  Dolphin  v. 
Robins,  7  H.  L.  C.  390,  decided  by  your  Lordships,  where  the  validity 


SECT.  lY.]  SHAW    V.    GOULD,  113 

of  a  will  made  in  France  depended  upon  the  effect  of  a  Scotch  divorce 
upon  an  English  marriage.  In  that  case  there  was  an  agreement  be- 
tween the  married  parties  to  procure  a  divorce  in  Scotland,  and  the  hus- 
band w^as  to  receive  £12,000,  which  was  to  be  forfeited  in  case  he  should 
by  false  or  insufficient  evidence  prevent  the  divorce  being  obtained  (for 
so  I  interpret  the  ambiguous  and  inaccurate  language  of  the  memoran- 
dum upon  that  subject).  It  was  held  that  a  divorce  procured  b}' the 
execution  of  this  preconcerted  arrangement  was,  as  Lord  Kingsdown 
expressed  it,  "mere  mockery,  and  collusion  from  beginning  to  end."' 

In  that  case  the  husband  was  to  forfeit  the  mone}-  he  was  to  receive 
for  assisting  to  procure  the  divorce  "if  he  should  prevent  its  being 
obtained  bv  false  or  insufficient  evidence."  In  the  present  case 
Buxton  was  to  forfeit  what  he  was  to  receive  "  in  case  he  should  give 
information  prejudicial  to  the  divorce."  I  think  the  cases  exactl}' 
resemble  one  another. 

Whatever  ma}-  be  the  view  of  the  Scotch  courts  as  to  the  legitimacy 
of  the  appellants,  3-our  Lordships  are  called  upon  to  determine 
whether  they  answer  a  particular  description  upon  principles  of  English 
law,  and  b}'  the  rules  of  construction  of  an  English  will.  It  is  clear 
that  the  words  "son  lawfully  begotten"  and  "children"  in  the  will 
in  question  can  apply  only  to  a  legitimate  son  or  to  legitimate  children, 
and  that  the  appellants,  not  having  the  cliaracter  of  legitimac}'  accord- 
ing to  English  law,  cannot  take  under  these  descriptions. 

The  decree  appealed  from  must  be  affirmed. 

Lord  Westburv.  My  Lords,  this  case  depends  on  the  answer  to 
the  question,  whether  a  marriage  solemnized  in  England  between  two 
English  subjects  domiciled  in  England  at  the  time,  can  be  dissolved  by 
the  decree  of  a  foreign  tribunal. 

According  to  the  institutions  of  England  as  existing  at  the  time  of 
the  alleged  divorce,  no  such  decree  could  have  been  obtained  in  any 
Court,  for  no  forensic  tribunal  existed  in  England  with  jurisdiction  to 
grant  divorces  «  vinculo  matrimonii.  The  foreign  decree  of  divorce 
is  adduced  for  the  purpose  of  determining  a  question  touching  a  right 
of  property  that  has  arisen  in  an  English  court  of  justice,  and  which 
must  be  decided  by  English  law.  It  is  therefore  a  question  of  English 
law,  and  the  true  inquiry  is  :  Does  the  English  law  recognize  and 
admit  the  finality  of  a  foreign  judgment  divorcing,  a  vinculo  niatri- 
mo/iii,  English  subjects  who  were  married  in  England  ?  The  foreign 
decree  may  be  perfectlv  valid  and  unimpeacliable  within  the  territorial 
jurisdiction  of  the  judge  who  pronounced  it.  It  may  there  fix  the 
legal  status  of  persons  and  conclude  the  right  and  title  to  property  ; 
but  it  may  still  not  be  such  a  sentence  as  by  the  comit}-  of  nations 
(that  is,  by  the  general  principles  of  jmisprudence  which  are  recognized 
b}'  the  Christian  States  of  Europe)  has  an  extraterritorial  effect  and 
authority. 

The  first  essential  for  the  validity  of  a  foreign  decree  is,  that  it 
should  be  pronounced  by  a  court  of  competent  jurisdiction  between 
V(jr-.  II.  —  8 


114  SHAW   V.   GOULD.  [CHAP.  VI 

parties  who  are  bona  fide  subject  to  that  jurisprudence.  In  the 
present  case  two  EngUsh  subjects  who  had  married  in  England  being 
desirous  of  obtaining  a  divorce,  crossed  the  border  into  Scotland  for 
the  purpose  of  getting  it.  The  wife  sued  the  husband  for  a  divorce  in 
a  court  which  was  competent  to  exercise  jurisdiction  for  such  a 
purpose  over  those  who  were  subject  to  it.  But  could  this  court, 
consistently  with  true  principles,  assert  such  jurisdiction  over  those 
who  were  not  permanently  residing  within  the  limits  of  its  authority  ? 
I  am  not  looking  at  the  simulated  residence  in  Scotland  with  a  view 
to  holding  the  judgment  collusive,  but  with  reference  to  the  ques- 
tion whether  the  Scotch  court  can  justly  assert  that  by  such  tempo- 
rary residence  it  acquired  a  jurisdiction  which  the  courts  of  another 
country  ought  to  recognize  and  admit.  It  is  perfectly  competent  to 
the  courts  in  Scotland  to  fix  a  certain  amount  of  residence  as  the 
condition  for  the  exercise  of  its  jurisdiction,  and  if  that  condition 
be  fulfilled,  it  may  proceed  to  pronounce  a  judgment  that  will  be  bind- 
ing within  its  own  borders  ;  but  that  judgment  cannot  claim  extra- 
territorial authority  unless  it  be  pronounced  in  accordance  with  rules 
of  international  public  law. 

The  extent  and  limits  of  the  comity  of  nations,  or  of  the  obligation 
which  one  nation  is  under  to  receive  and  admit  the  judgments  of  the 
courts  of  another  country,  are  well  defined  in  one  of  the  axioms  of 
Huber,  who  says:  "  Rectores  imperiorum  id  comiter  agunt,  ut  jura 
cnjusque  popnli  intra  terminos  ejus  exercita,  teneant  ubique  suam  vim, 
quatenus  nihil  potestati  aut  juri  alterius  imperantis  ejusque  civium 
prjejudicetur."  But  if  the  court  of  a  foreign  country  permits  the 
subjects  of  a  bordering  nation  to  resort  to  it  for  the  purpose  only  of 
getting  rid  of  the  personal  status  and  obligations  of  husband  and  wife, 
which  release  they  cannot  obtain  in  the  courts  of  their  own  country,  it 
is  plain  that  such  foreign  court  is  in  reality,  by  its  tribunals,  usurping 
the  rights  and  functions  of  sovereignty  over  the  subjects  of  another 
country  who  still  retain,  and,  as  soon  as  the  purpose  is  answered, 
intend  to  return  to  their  native  country  and  resume,  their  original  posi- 
tion. Can  this  be  done  without  injury  to  the  authority  of  such  border- 
ing power  and  to  the  rights  of  its  subjects? 

Social  rights  depend  in  very  many  cases  upon  the  personal  status 
and  relations  of  individuals  ;  that  is  to  say,  upon  the  relation  of  hus- 
band and  wife,  father  and  child,  and  all  the  relations  which  are  conse- 
quent upon  marriage,  and  if  these  relations  as  they  exist  cannot  be 
altered  by  the  tribunals  and  domestic  law  of  the  country  where  they 
were  formed,  are  not  the  institutions  of  that  country  prejudiced,  and 
its  subjects  injured,  by  permitting  a  foreign  court  to  be  invoked  for 
the  purpose  of  altering  social  rights  and  duties,  which  cannot  be 
changed  under  their  own  laws,  in  their  own  courts  of  justice? 

It  is  true  that  persons  commorant  in  a  foreign  country,  but  without 
any  intention  of  remaining  there,  are,  whilst  they  are  so  commorant, 
subject  to  the  laws  of  that  country,  and  must  yield  obedience  to  them  ; 


SECT.  IV.]  SHAW    V.   GOULD.  115 

but  that  is  a  very  different  thing  frona  a  country  permitting  foreigners 
to  resort  to  it  for  the  sole  purpose  of  getting  released  from  the  most 
solemn  of  all  contracts,  and  the  most  important  social  obligations. 
Marriage  is  the  very  foundation  of  civil  society,  and  no  part  of  the 
laws  and  institutions  of  a  country  can  be  of  more  vital  importance  to 
its  subjects  than  those  which  regulate  the  manner  and  conditions  of 
forming,  and,  if  necessary,  of  dissolving  the  marriage  contract. 

No  nation  can  be  required  to  admit  that  its  domiciled  subjects  may 
lawfully  resort  to  another  country  for  the  purpose  of  evading  the  laws 
under  which  they  live.  When  they  return  to  the  country  of  their 
domicil,  bringing  back  with  them  a  foreign  judgment  so  obtained, 
the  tribunals  of  the  domicil  are  entitled,  or  even  bound,  to  reject 
such  judgment,  as  having  no  extraterritorial  force  or  validity.  They 
are  entitled  to  reject  it,  if  pronounced  by  a  tribunal  not  having  com- 
petent jurisdiction  ;  and  they  are  bound  to  reject  it,  if  it  be  an  invasion 
of  their  own  laws  and  polity. 

But  this  right  to  reject  a  foreign  sentence  of  divorce  cannot  rest  on 
the  principle  stated  by  the  Vice-Chancellor  in  his  judgment,  namely, 
that  where,  by  the  lex  loci  co7itractus,  the  marriage  is  indissoluble,  it 
cannot  be  dissolved  by  the  sentence  of  any  tribunal.  Such  a  principle 
is  at  variance  with  the  best  established  rules  of  universal  jurisprudence, 
that  is  to  say,  with  those  rules  which,  for  the  sake  of  general  conven- 
ience and  by  tacit  consent,  are  received  by  Christian  nations  and 
observed  in  their  tribunals.  One  of  these  rules  certainly  is,  that 
questions  of  personal  status  depend  on  the  law  of  actual  domicil. 

It  is  said  by  a  foreign  jurist  of  authority,  Rodenburg,  and  his  works 
are  cited  with  approbation  by  many  recent  writers,  "  Unicum  hoc  ipsa 
rei  natura  ac  necessitas  invexit,  ut  cum  de  statu  et  conditione  hominum 
quoeritur,  uni  solum  modo  Judici,  et  quidem  Domicilii  universum  in 
ilia  jus  sit  attributum."  This  position,  that  uJiiversum  Jus,  that  is, 
jurisdiction  which  is  complete  and  ought  to  be  everywhere  recognized, 
does,  in  all  matters  touching  the  personal  status  or  condition  of  per- 
sons, belong  to  the  judge  of  that  country  where  the  persons  are 
domiciled,  has  been  generally  recognized. 

The  language  of  BouUenois,  a  French  jurist  of  authority,  is  to  the  same 
effect.  His  position  is,  that  the  laws  of  a  sovereign  extend  over  persons 
domiciled  within  his  territory,  and  over  property  which  is  there  situate. 

That  this  rule  is  one  which  is  introduced  l)y  i/iS(C  rci  natura  ac 
necessitas,  is  well  illustrated  and  enforced  by  Lord  Brougham,  in  his 
judgment  in  the  case  of  Warrender  v.  Warrender. 

If,  as  is  certain,  the  domicil  of  origin  may  be  effectually  put  off, 
and  a  new  domicil  acquired  by  persons  who  are  rml  juris,  it  must 
follow  that  such  persons  thereby  ])econie,  to  all  intents  and  purposes, 
subject  to,  and  entitled  to  the  benefit  of,  the  laws  and  institutions  of 
the  adopted  country,  in  like  manner  as  they  were  entitled  and  subject 
to  the  laws  of  the  domicil  of  origin,  and  that  witliout  becoming  aliens 
in  their  own  native  country. 


116  SHAW  V.   GOULD.  [CHAP.  VI. 

Mr.  Justice  Story,  in  his  book  on  tlie  Conflict  of  Laws,  §  205  n., 
cites  a  judgment  delivered  by  the  Supreme  Court  of  Pennsylvania,  in 
which,  after  observing  that  a  bona  fide  domicil,  in  the  strictest  sense  of 
the  word,  was  essential  to  jurisdiction  to  pronounce  a  divorce  a  vinculo 
matrimonii^  Chief  Justice  Gibson  treats  the  British  tenet  of  perpetual 
allegiance  as  the  root  of  the  English  doctrine  of  the  indissolubility  of  the 
marriage  contract.  I  hardly  need  observe  that  this  is  an  unfounded 
notion,  and  that  the  political  maxim  of  nemo  potest  exuere  patriam, 
which  preserves  the  duty  of  allegiance  notwithstanding  the  change  of 
domicil,  has  nothing  to  do  with  the  personal  relations  and  rights  of 
British  subjects  under  civil  contracts. 

If  it  were  permitted  by  this  House  to  be  supposed  that  the  law  of 
this  country  was  to  the  effect  stated  by  the  Vice-Chancellor,  viz.,  that 
the  lex  loci  contractus  enters  into  and  forms  part  of  the  marriage  con- 
tract, so  that  if,  by  the  law  of  the  country  where  the  marriage  is 
solemnized,  and  of  which  the  parties  are  natural-born  subjects,  no 
divorce  a  vi?iculo  can  be  granted,  and  such  marriage  is  everywhere 
indissoluble,  it  would  be  a  conclusion  that  would  lead  to  the  most 
startling  results.  Suppose  two  Roman  Catholics,  who,  having  married 
in  Spain,  afterwards  became  Protestants,  and  are  bona  fide  domiciled 
in  this  countr}',  where  they  reside  for  3'ears,  could  it  be  held  that  the 
husband  was  bound  b}'  the  lex  loci  contractus  from  seeking  a  divorce 
from  his  wife  by  reason  of  adulter}-  committed  during  such  residence  ? 
On  the  other  hand  suppose  two  Prussian  subjects  married  at  Berlin, 
where  a  divorce  may  be  obtained  for  incorapatibilit}'  of  temper,  could 
the}-,  on  becoming  domiciled  in  England,  claim  a  divorce  on  such  a 
ground  before  the  tribunals  of  this  country,  where  such  a  ground  of 
divorce  is  not  judicially  recognized?  Many  other  cases  might  be  put, 
but  it  it  is  unnecessary  to  do  so,  for  I  apprehend  there  is  no  substantial 
authority  for  the  position.  In  England,  since  the  Reformation,  mar- 
riage, being  no  longer  a  sacrament,  has  alwa3s,  in  theory  of  law,  been 
dissoluble  for  adulter}-  in  the  wife,  and  for  incestuous  adultery  and 
other  crimes  by  the  husband ;  but  until  the  recent  Divorce  Act,  this 
law  was  administered  by  Parliament  alone,  and  although  the  decision 
of  Parliament  was  in  the  form  of  an  act  or  prlvileffium,  and  not  of  a 
judicial  decree,  yet  the  act  was  granted  upon  evidence  proving  that 
the  case  came  within  the  scope  of  certain  established  rules.  This  pro- 
ceeding was  in  spirit  a  judicial,  though  in  form  a  legislative  act.  The 
justice  of  divorce  was  recognized,  but  no  forensic  tribunal  was  in- 
trusted with  the  power  of  applying  the  remed}*.  But  the  law  and 
practice  of  Parliament  were  well  known  ;  and,  in  fact,  this  House  acted 
as  a  court  of  justice.  It  cannot,  tlierefore,  be  correctly-  said,  that 
divorce  a  vinculo  matrimonii  was  contrary  to  the  principles  and  insti- 
tutions of  this  countr}-.  It  follows  that  the  validity  of  a  foreign 
decree  of  divorce  must  be  ascertained  in  the  same  manner  and  on  the 
same  rules  b}-  which  the  conclusive  eflJect  of  other  foreign  judgments 
has  to  be  determined. 


SECT.  IV.]  SHAW   V.   GOULD.  117 

The  position  that  the  tribunal  of  a  foreign  countrj-  having  jurisdic- 
tion to  dissolve  the  marriages  of  its  own  subjects  is  competent  to 
pronounce  a  simUar  decree  between  English  subjects  who  were  married 
in  England,  but  who  before  and  at  the  time  of  the  suit  are  permanently 
domiciled  within  the  jurisdiction  of  such  foreign  tribunal,  such  decree 
beino-  made  in  a  bona  fide  suit  without  collusion  or  concert,  is  a 
position  consistent  with  all  the  English  decisions,  although  it  may  not 
be  consistent  with  the  resolution  commonly  cited  as  the  resolution  of 
the  judges  in  Lolley's  Case.^  .  .  . 

It  follows  that  the  marriage  of  Mr.  and   Mrs.  Buxton  was  legally 
subsisting  at  the  time  of  the  second  marriage  between  Mrs.   Buxton  . 
and  Mr.  Shaw  ;  and  that  the  second  marriage  was  therefore  void,  and 
the  issue  of  it  cannot  claim  to  be  entitled  by  English  law  to  the  benefit 
of  the  trust  previously  declared  for  the  children  of  Elizabeth  Hickson. 

But  even  if  the  first  husband,  Mr.  Buxton,  had  been  permanently 
domiciled  in  Scotland  before  and  at  the  date  of  the  decree  for  divorce, 
in  which  case  the  Scotch  courts  might  have  had  jurisdiction,  I  should 
still  have  been  of  opinion  that  the  decree  was  not  binding,  as  having 
been  collusively  obtained.  But  I  abstain  from  resting  my  judgment 
upon  this  ground,  because  I  entertain  a  doubt  whether  colkision  could 
be  now  used  as  a  suflScient  reason  for  setting  aside  the  decree  after 
the  deaths  of  all  the  parties  to  the  proceeding.  .   .  . 

For  these  reasons  I  am  of  opinion  that  the  decree  of  the  Vice-Chan- 
cellor  was  correct,  and  ought  to  be  affirmed.      ^ 

Lord  Colonsat.  .  .  .  When  it  is  said  in  unqualified  terms  that  a 
marriage  duly  celebrated  in  England,  according  to  the  rites  of  the 
English  Church,  ought  to  be  regarded  and  treated  by  the  courts  of 
other  countries  as  a  contract  involving  the  element  of  absolute  indis- 
solubility as  of  its  essence,  and  ought  not  to  be  under  any  circum- 
stances dissolved  by  decree  of  a  foreign  court ;  in  short,  that  a  foreign 
court  has  no  power  to  dissolve  an  Englisli  marriage  ;  that  is  a  proposi- 
tion in  general  or  international  law,  and  would  require  to  be  maintained 
bv  reference  to  recognized  rules  of  international  law,  or  general  princi- 
ples of  jurisprudence.  But  although  the  proposition  has  been  intro- 
duced into  this  case  it  has  not  been  su[)poitod  by  any  such  reference, 
and  I  cannot  assent  to  it  as  resting  on  any  recognized  rule  of  inter- 
national law.  It  appears  to  me  to  involve  more  than  one  fallacy.  It 
assumes  as  a  basis  that  absolute  indissolubility  is  an  inherent  quality 
of  an  English  marriage,  necessarily  attaching  to  it  under  all  circum- 
stances. Then,  building  on  that  basis,  it  assumes  that  as  regards  in- 
ternational law  the  relation  of  husband  and  wife  stands  on  the  same 
footing  as  ordinary  business  contracts,  and,  farther,  it  assumes  that 
the  lex  loci  contractus  must  be  the  sovereign  rule  for  determining  all 
questions  as  to  the  rights,  duties,  and  obligations  arising  out  of  that 
relation,  and  the  remedy  or  redress  to  be  given  in  the  event  of  either 
party  acting  in  violation  of  tlie  conlrfict. 

1  Lord  Westbury  examined   Lolloy's  (';ise,  1    Kuss.  &  \\.  237;  WiirnMidcr  r.  War- 
render,  2  CI.  &  F.  .507  ;  I)oli)hiii  v.  Robins,  7  H.  L.  C.  .390.  —  Ed. 


118  SHAW    V.    GOULD.  [CHAP.  VI. 

I  hold  each  and  all  of  these  assumptions  to  be  more  or  less  erro- 
neous. Is  it  sound  that  absolute  indissolubility  is  an  inherent  qualit}* 
of  marriage  when  celebrated  in  England  according  to  the  rites  of  the 
English  Church?  Is  it  so  regarded  even  in  England?  I  have  heard 
no  authority  for  that.   .   .   . 

The  fallacies  that  have  lurked  in  undefined  notions  of  the  indissolu- 
bility of  English  marriages,  and  the  omnipotence  of  the  lex  loci  con- 
tractus^ being  dislodged,  what  are  the  rules  b}'  which  we  should  be 
governed  in  deciding  this  case?  Assuming  in  the  meantime  that  the 
case  depends  entirely  on  the  reception  (so  to  speak)  to  be  given  to  the 
foreign  decree  of  divorce,  it  is  to  be  observed  that  the  respondents  deny 
that  the  decree  is  valid  according  to  the  law  of  the  country  in  which  it 
was  pronounced.  If  we  are  to  go  into  that  inquiry  we  must  deal  with 
it  upon  the  evidence,  and  the  evidence,  so  far  as  it  goes,  is  in  favor 
of  the  validity  of  the  decree.  Of  course  I  do  not  include  in  the  evi- 
dence an  opinion  said  to  have  been  given  b}-  a  witness,  not  in  this 
cause,  and  which  had  due  reference  to  the  question  of  jurisdiction. 

I  therefore  presume  that  we  must  deal  with  the  case  on  the  footing 
that  the  decree  is,  or  may  be,  a  valid  decree  of  divorce  in  Scotland. 
Then  why  is  that  decree  to  have  no  effect  given  to  it  in  England? 
not  because  the  English  marriage  was  absolutely  indissoluble ;  not 
because  the  jiis  gentium  restrains  the  courts  of  one  country  from 
dissolving  a  marriage  celebrated  in  another  country,  or  holds  that  the 
lex  loci  contractus  is  necessaril}'  imported  in  its  totalit}'  into  whatever 
country  the  parties  may  go  to.  It  must  be  because  the  circumstances 
of  this  case  bring  it  within  some  exception  recognized  in  general  law, 
or  because  the  law  of  England,  irrespective  of  any  rules  of  general  law, 
refuses  to  give  effect  to  such  a  decree.  The  main  feature  of  the  case 
in  this  view  is  that  the  parties,  at  least  Buxton  the  husband,  being  a 
domiciled  Englishman,  having  no  connection  vrith  Scotland,  went 
there  for  the  purpose  of  giving  to  the  Scottish  court  jurisdiction  in  the 
suit  for  divorce  at  the  instance  of  his  wife.  I  think  that  the  English 
cases  referred  to,  viz.  Lollej^'s  Case  and  Conwa}'  v.  Beazle}',  and  the 
case  of  Dolphin,  are  precedents  to  the  effect  that  the  courts  of  England 
will  not  recognize  a  decree  of  divorce  obtained  under  such  circum- 
stances, and  that,  sitting  in  an  P2nglish  court,  I  am  bound  to  respect 
these  precedents  so  far  as  the}'  go  ;  and  thev  may  be  sufficient  for  the 
decision  of  the  present  case.  At  the  same  time  I  may  be  permitted  to 
sa}',  that  I  am  not  so  clear  in  mj'  apprehension  of  the  principle  of 
general  law  on  which  those  decisions  proceeded. 

It  was  said  that  a  foreign  court  has  no  jurisdiction  in  the  matter  of 
divorce,  unless  the  parties  are  domiciled  in  that  countrj' ;  but  what  is 
meant  by  "domicil  ?"  I  have  observed  that  it  is  designated  some- 
times as  a  bona  fide  domicil,  sometimes  as  a  real  domicil,  sometimes 
as  a  complete  domicil,  sometimes  as  a  domicil  for  all  purposes. 
But  I  must,  with  deference,  hesitate  to  liold  that  on  general  principles 
of  jurisprudence,  or  rules  of  international  law,  the  jurisdiction  to  redress 


SECT.  IV.]  SHAW    V.    GOULD.  119 

matrimonial  wrongs,  including  the  granting  of  a  decree  of  divorce  « 
vinculo,  depends  on  there  being  a  domicil  such  as  seems  to  be  im- 
plied in  some  of  these  expressions.  Jurisdiction  to  redress  wrongs 
in  regard  to  domestic  relations  does  not  necessaril}'  depend  on  domicil 
for  all  purposes.  If  the  decisions  to  which  I  have  referred  proceeded 
on  the  ground  that  the  resort  to  the  foreign  country  was  merely  for 
the  temporary  purpose  of  giving  to  the  courts  of  that  country  the 
opportunitv  of  dealing  with  the  case  according  to  their  own  law,  and 
thereby  obtaining  a  dissolution  of  the  marriage,  and  that  such  was  the 
object  of  both  parties,  these  decisions  might  be  said  to  derive  support 
from  principles  of  general  law,  on  the  ground  of  being  vi  fraudem  legis. 
But  if  you  put  the  case  of  parties  resorting  to  Scotland  with  no  such 
view,  and  being  resident  there  for  a  considerable  time,  though  not  so 
as  to  change  the  domicil  for  all  purposes,  and  then  suppose  that  the 
wife  commits  adultery  in  Scotland,  and  that  the  husband  discovers  it, 
and  immediately  raises  an  action  of  divorce  in  the  court  in  Scotland 
where  the  witnesses  reside,  and  where  his  own  duties  detain  him,  and 
that  he  proves  his  case  and  obtains  a  decree,  which  decree  is  unques- 
tionably good  in  Scotland,  and  would,  I  believe,  be  recognized  in  most 
other  countries,  I  am  slow  to  think  that  it  would  be  ignored  in  England 
because  it  had  not  been  pronounced  by  the  Court  of  Divorce  here. 
How  would  the  Court  of  Divorce  here  deal  with  the  converse  case  ?  I 
can  figure  many  phases  in  which  the  question  of  the  efficacy  of  a 
decree  of  divorce  may  present  itself,  and  I  am  unwilling,  in  the  present 
case,  to  go  farther  than  to  say  that  the  cases  referred  to  satisfy  me 
that  the  law  of  p:ngland  does  not  acknowledge  the  validity  of  a  decree 
of  divorce  obtained  in  the  circumstances  disclosed  in  this  case. 

There  is  still  another  point  in  the  case  which  has  raised  some  doubt 
in  my  mind.  It  is  this  :  Assuming,  as  we  must  do,  on  the  evidence, 
that,  according  to  the  law  of  Scotland,  the  marriage  of  the  father  and 
mother  of  the  appellants  was  a  valid  marriage,  and  they  are  children 
lawfully  procreated  of  that  marriage,  and  so  in  their  own  country 
legitimate  from  their  birth,  is  that  status  to  be  denied  to  them  in  this 
country,  on  the  ground  that  is  here  pleaded?  I  do  not  question  the 
logic  of  the  reasoning  by  which  the  conclusion  has  been  reached,  that 
if  there  were  no  valid  divorce  there  was  an  incapacity  to  marry,  and, 
consequently,  no  valid  marriage.  But  there  was  a  valid  divorce,  and  a 
capacity  to  marry  in  the  territory,  and  when  that  marriage  has  resulted 
in  the  birth  of  chiklren,  wlio  have  the  status  of  legitimate  children 
according  to  the  law  of  tlieir  own  country,  are  we  in  reference  to  tliem 
and  their  rights  to  revert  to  an  inquiry,  at  whatever  distance  of  time, 
as  to  whether  Buxton's  resort  to  Scotland  was,  or  was  not,  for  the 
l)urpose  of  facilitating  the  divorce?  That  has  not  been  directly  de- 
cided in  any  of  tlie  cases,  —  not  even  in  tlic  case  of  Vardill,  —  but  I 
tliink  the  cases  tend  in  that  direction  so  strongly  that  I  cainiot,  espe- 
cially after  the  opinions  now  delivered,  take  upon  myself  to  suggest  a 
doubt  as  to  their  being  the  law  of  England,  although  I  do  not  see  my 


120  IN    RE    GKOVE.  [CHAP.  VL 

way  to  reconciling  it  with  general  principles  of  jurisprudence,  or  the 
ofenerally  recognized  rules  of  international  law.  .  .  . 

The  learned  judge  in  the  court  below  refers  to  the  monstrous  con- 
sequences that  would  result  from  recognizing  the  possibility  of  a  man 
havin<y  two  lawful  wives,  one  in  England,  and  another  in  some  other 
country.  But  I  think  he  has  failed  to  perceive  that  such  a  state  of 
matters  would  be  promoted  rather  than  restricted  by  the  doctrine  of 
absolute  indissolubility,  and  of  the  supremacy  of  the  lex  loci  contractus, 
while  it  would  not  exist  if  effect  was  given  to  the  foreign  decree  of 
divorce.  Order  affirmed^  and  appeal  dismissed. 


In  ee   grove. 

Court  of  Appeal.     1888. 

[Reported  40  Chancery  Division,  216.] 

Further  Consideration.  This  was  an  action  for  the  administration 
of  the  estate  of  Caroline  Emilia  Grove,  a  domiciled  EngUshwoman,  who 
died  on  the  29th  of  October,  1866,  at  the  age  of  eighty-eight,  a  lunatic 
and  intestate,  and  possessed  of  considerable  personal  estate. 

In  October,  1867,  as  no  next  of  kin  appeared  to  claim  her  estate, 
letters  of  administration  were  granted  to  the  Solicitor  to  the  Treasury  ; 
and  the  Treasury  shortly  afterwards  took  possession  of  the  estate. 

Two  sets  of  persons  subsequently  set  up  conflicting  claims  to  the 
estate  as  next  of  kin  of  the  intestate,  i.  e.  the  Vaucher  family  and  the 
Falquet  family,  and  this  action  was  brought  by  a  member  of  the  former 
family  in  1884. 

In  the  course  of  the  proceedings  an  inquiry  was  directed  as  to  who 
were  the  next  of  kin  of  the  intestate,  and  evidence  was  gone  into  from 
which  it  appeared  that  both  the  Vaucher  family  and  the  Falquet  family 
claimed  through  the  same  man,  Marc  Thomegay,  and  the  same  woman, 
Martha  Powis,  under  tlie  following  circumstances  :  — 

Marc  Thomegay,  who  was  the  grandfather  of  the  intestate,  was 
born  in  Geneva  of  Swiss  parents,  in  the  year  1712,  and  there  was  no 
question  that  his  domicil  of  origin  was  Genevese.  On  the  13th  of 
August,  1728,  he  was  received  as  a  burgess  of  Geneva.  In  1729,  his 
father,  who  was  a  watchmaker,  died  in  Geneva.  Marc  Thomegay  was 
a  worker  in  gold  and  silver,  and  in  1734,  being  then  twenty-two  years 
of  age,  he  came  to  England,  where  he  remained  until  his  death  in  1779. 
In  the  year  1743  a  private  Act  of  Parliament  was  passed,  whereby 
Peter  Thomegay,  the  brother  of  Marc  Thomegay,  and  four  other 
foreigners  were  naturalized  as  subjects  of  Great  Britian,  but  this  act 
did  not  include  and  made  no  mention  of  Marc  Thomegay. 

Some  time  after  the  arrival  of  Marc  Thomegay  in  England,  he 
formed  a  connection  with  an  Englishwoman  named  Martha  Pouis  ;  he 


SECT.  IV.]  IN    RE    GROVE.  121 

cohabited  with  her,  for  several  years,  and  had  by  her  three  illegitimate 
children,  viz.,  Sarah,  who  was  boni  on  the  oth  of  February,  1744,  and 
was  baptized  on  the  24th  of  the  same  month  by  the  name  of  Sarali 
Thomegay,  in  the  church  of  St.  Mary,  Whitechapel,  where  he  presented 
her  under  his  own  name  and  as  his  daughter ;  a  son,  who  was  born  on 
the  11th  of  January,  1745,  and  was  baptized  on  the  IGth  of  February 
following,  in  the  same  church  ;  and  another  daughter,  who  was  born 
on  the  14th  of  November,  1747,  and  was  baptized  on  the  13th  of 
December  following,  in  the  parish  church  of  Barking  in  Essex.  These 
two  children  were  also  baptized  under  their  father's  name,  and  as  his 
children. 

Sarah  Thomegay,  on  the  19th  of  December,  1768,  married  M.  Delom, 
a  citizen  of  Vevey,  and  she  was  the  ancestress  of  the  Vaucher  family. 

Elizabeth  Thomegay  married  a  M.  Courbel,  a  citizen  of  Geneva. 

On  the  22d  of  May,  1749,  Marc  Thomegay  was  married  to  an 
Englishwoman  named  Elizabeth  Woodhouse,  in  the  church  of  St. 
Pancras  ;  of  this  marriage  there  was  issue  one  child,  viz.  Margaret 
Sarah  Thomegay,  who  was  born  on  the  2 2d  of  December,  1749,  and 
was  baptized  on  the  13th  of  January,  1750,  in  the  church  of  St.  Leon- 
ard's, Shoreditch.  Margaret  Sarah  Thomegay,  on  the  13th  of  June, 
1788,  married  an  Englishman  named  William  Grove,  and  she  died  in 
London  in  the  year  1792,  having  had  issue  one  child  only,  viz.  the 
intestate   Caroline   Emiha   Grove. 

Elizabeth  Woodhouse  died  on  the  26th  of  March,  1752,  and  on  the 
2d  of  February,  1755,  Marc  Thomegay  married  Martha  Powis,  by 
whom  he  had  formerly  had  the  three  illegitimate  children  above 
mentioned. 

Of  this  marriage  there  was  issue  four  children,  one  of  whom  died  in 
infancy.  The  others  were  Jean,  who  was  born  on  the  5th  of  October, 
1756,  and  was  baptized  on  the  29th  of  the  same  month  in  tlie  church  of 
W^estham,  Essex;  Richard,  who  was  born  on  the  11th  of  February, 
1762,  and  was  baptized  on  the  1st  of  Marcli  following,  in  the  church  of 
St.  Leonard's,  Shoreditch  ;  and  Sophie  Martha,  who  was  born  on  the 
12th  of  November,  1764,  and  was  baptized  on  the  7th  of  December 
following,   in  the  same  church. 

Of  these  three  children,  Sophie  Martha  was  the  only  one  who  left 
issue,  and  she  in  1791  married  Jean  Louis  Falquet,  and  was  the  an- 
cestress of  the  Falquet  family. 

Martha  Thomegay  (7iee  Powis)  died  in  the  year  1772. 

In  the  year  1774  Marc  Thomegay  presented  a  petition  to  the  Council 
of  Geneva,  apparently  in  the  interest  of  liis  three  children  by  Martha 
Powis  before  his  marriage  with  her,  in  whicli  lie  stated  "  that  in  1734 
he  went  to  England,  where  he  now  is,  that  one  of  the  first  ties  he 
formed  was  an  attachment  for  Miss  Martha  Powis,  whom  he  intended 
to  marry  as  soon  as  fortune  would  allow  him  to  do  so;  that  thwarted 
by  circumstances  and  encouraged  by  their  intention  to  marry  one 
another  as  soon  as  those  circumstances  would  permit,  they  yielded  and 


122  IN    RE    GROVE.  [chap.  VI. 

lived  together  for  several  3'ears  as  husband  and  wife  ;  that  of  this 
intercourse  they  had  three  children."  Then  after  stating  the  names 
and  dates  of  the  births  and  baptisms  of  these  children,  as  above  set 
forth,  he  stated  "  that  ver}'  extraordinary  circumstances  thwarted  the 
resolution  he  had  formed  to  marry  Martha  Powis,  and  induced  him  to 
marry  Miss  Elizabeth  Woodhouse,"  and  stated  the  death  of  his  wife 
Elizabeth  and  his  subsequent  marriage  witli  Martha  Powis.  Then  the 
petition  stated,  intei-  alia,  that  the  petitioner,  having  been  informed 
that  in  Geneva,  his  native  country,  subsequent  marriage  legitimized 
illegitimate-born  children,  made  application  in  order  to  prove,  by  the 
certificates  there  mentioned,  the  births  of  his  son  Marc,  and  his 
daughters  Sarah  and  Elizabeth,  praying  the  Council  to  grant  him 
record  of  his  proofs  and  declarations,  so  that  no  one  might  question 
to  his  above-mentioned  three  children,  their  condition  of  legitimate 
children  in  Geneva,  his  native  country.  An  order  was  made  by  the 
Council  granting  record  accordingly,  and  the  births  of  these  three 
children  were  entered  in  the  register  of  births  of  children  of  Genevese 
parents  born  in  foreign  parts. 

The  statements  contained  in  tliis  petition  were  borne  out  by  the 
certificates  attached  thereto,  and  these  certificates  were  put  in  evidence 
in  this  action. 

Marc  Thomegay  made  his  will  on  the  9th  of  March,  1779,  describing 
himself  as  of  Tottenham,  in  the  county  of  Middlesex,  and  died  on  the 
2d  of  December,  1779.  From  tlie  will  it  appeared  that  he  was  carry- 
ing on  business  in  partnership  with  his  son,  and  was  entitled  to  a 
leasehold  house,  workshops,  and  premises  in  Moorfields,  within  the 
parish  of  St.  Leonard's,  Shoreditch.  It  did  not  appear  when  this  lease 
was  granted,  but  in  the  baptismal  certificates  of  1744  and  1745  the 
parents  were  described  as  of  Ayliffe  Street,  and  Moorfields  was  not 
mentioned  in  any  certificate  until  the  year  1750. 

There  was  evidence  that  according  to  the  laws  of  the  canton  of 
Geneva  illegitimate  children  are  legitimated  by  the  subsequent  marriage 
of  their  father  and  mother,  notwithstanding  the  intervening  marriage 
of  their  father  with  another  woman. 

The  Chief  Clerk,  by  his  certificate  made  in  this  action,  in  substance 
left  to  the  court  the  question  whether  under  these  circumstances  Sarah 
Delom  and  the  other  two  children  born  of  Marc  Thomegay  and  Martha 
Powis  during  their  cohabition  were  to  be  taken  as  legitimate  or  not ; 
and  found  that  if  Sarah  Delom  ought  to  be  treated  as  legitimate,  then 
the  next  of  kin  of  the  intestate  were  the  descendants  of  the  said  Sarah 
Delom,  who  were  represented  by  the  plaintiff,  and  that  if  not,  such 
next  of  kin  was  the  Falquet  familv- 

The  further  consideration  came  on  for  hearing  before  Mr.  Justice 
Stirling  on  the  20th  of  July,   1887.^ 

The  plaintiff  appealed  [from  the  judgment  of  Stirling,  J]. 

1  The  arjjiiments  and  the  decision  of  Mr.  Justice  Stirling  are  omitted.  —Ed. 


SECT.  IV.J 


IN    KE   GKOVE.  123 


Frv,  L.  J.^  I  agree  entirely  with  the  conclusion  arrived  at  by  the 
Lord  Justice,  and  I  am  glad  to  say  that  I  also  agree  in  the  law  which 
he  has  laid  down,  but  the  facts  of  the  case  influence  my  mind  some- 
what differently,  and  I  pick  my  way  through  those  facts  to  the  same 
conclusion  by  a  somewhat  different  course.  I  will,  therefore,  en- 
deavor to  state,  as  briefly  as  I  can,  the  view  I  take  of  this  case. 

The  appellant  claims  through  Sarah  Thomegay,  who  was  born  in 
17-il,  in  this  country,  and  was  an  illegitimate  child  of  Marc  Thomegay 
and  Martha  Powis.  At  birth  that  child  took  the  domicil  of  its  mother 
and  it  took  the  status  of  illegitimacy,  according  to  the  law  of  the  domicil 
of  its  mother,  and  it  took  also  the  capacity  to  change  that  status  of 
illegitimacy  for  one  of  legitimacy,  provided  that  according  to  the  law 
of  the  domicil  of  the  father,  the  subsequent  marriage  woukl  work 
legitimation.  The  position  of  such  a  child,  therefore,  is  curious,  taking 
domicil  and  status  from  the  mother,  but  taking  the  potentiality  of 
-changing  its  status  from  the  putative  father.  That  I  take  to  be  the 
law  applicable  to  this  case,  and  that  gives  rise  to  the  first  question, 
what  was  the  domicil  of  the  father  in  the  year  1744? 

It  must  be  taken  that  the  domicil  of  the  father  was  Genevese  at  the 
date  of  the  birth  of  Sarah  in  1744.  If  his  domicil  were  English,  there 
would  be  an  end  of  the  case ;  if  the  domicil  were  Genevese,  as  I  hold, 
then  arises  the  second  question,  which  is  this :  What  was  his  domicil 
at  the  date  of  the  subsequent  marriage  of  the  parents  in  1755?  It 
appears  to  me  that  the  domicil  governs  the  effects  of  the  marriage. 
That  I  take  to  be  the  general  law,  and  it  is  so  laid  down  by  Mr.  Justice 
Story,  in  the  189th  paragraph  of  his  work  on  Conflict  of  Laws:  "  In 
a  general  sense  the  law  of  the  matrimonial  domicil  is  to  govern  in 
relation  to  the  incidents  and  effects  of  marriage."  If,  therefore,  the 
subsequent  marriage  was  governed  by  the  English  domicil  it  would 
seem  to  follow  that  no  legitimation  can  take  effect.  If,  on  the  con- 
trary, the  subsequent  marriage  is  governed  by  Genevese  domicil,  it 
would  seem  that  subsequent  legitimation  does  take  effect.  It  may  be, 
tliough  on  this  point  no  evidence  has  been  adduced,  that  the  Genevese 
law  would  recognize  an  English  marriage  as  legitimating  the  previously 
born  issue.  Whether  that  be  so  or  not  I  do  not  know,  but  even  if  it 
be,  ray  conclusion  is,  that  we  should  not  follow  the  Genevese  law,  if  it 
gave  a  greater  effect  to  a  marriage  contract  in  England  when  the 
parents  have  an  English  domicil,  than  the  English  law  gave  to  it ;  and 
for  this  reason,  that  the  State  imposes  on  all  persons  domiciled  in  it. 
its  own  conclusions  as  to  the  effect  of  marriage.  Here  again  I  would 
refer  to  the  same  paragraph  in  ]\Ir.  Justice  Story's  Conflict  of  Laws, 
where,  citing  the  judgment  of  Lord  Robertson,  a  Scotch  judge,  he 
says:  "Marriage  is  a  contract  sin  generic;  and  the  rights,  duties, 
and  obligations  which  arise  out  of  it  are  matters  of  such  importance  lo 

1  Concurring  opinioiis  of  Cotton  and  Loi'ios,  L.JJ.,  arc  oniitteii.  'I'licv  diflVnil 
from  Fry,  L.  J.,  in  lioMiiifj  that  'riioni(;<^ay  was  doniiciled  in  Knghuid  at  tlio  Mnli  of 
baraii.     I'art  of  tlie  opinion  of  J-'ky,  L.  J.,  is  omitted.  —  Ku. 


124  SCOTT    V.    KEY,  [CHAP.  VI. 

the  well-being  of  the  State,  that  the}-  are  regulated  not  by  the  private 
contract,  but  bj-  the  public  laws  of  the  State,  which  are  imperative  on 
all  who  are  domiciled  within  its  territory."  I  would  remark  again,  that 
I  entirel}'  agree  with  what  has  been  said  b}-  Lord  Justice  Cotton,  with 
regard  to  the  effect  of  the  cases  of  Munro  v.  Munro,  7  CI.  &  F.  842, 
and  Udny  v.  Udny,  Law  Rep.  1  H.  L.  Sc.  441,  on  this  question  of  law, 
and  I  think  that  they  very  strongly  support  the  conclusion  which  I 
have  endeavored  to  express. 

Now,  that  being  so,  we  come  back  to  the  question  of  fact,  where  was 
Marc  Thomegay  domiciled  in  17.55  when  he  contracted  marriage  with 
Martha  Powis  ?  In  ni}-  judgment  his  domicil  was  English.  .  .  .  and 
that  consequently'  the  Elnglish  law  of  marriage  must  govern  the  effects 
of  the  marriage  then  contracted,  and  tliat  English  law  would  not  allow 
subsequent  legitimation.  I  come,  therefore,  to  the  same  conclusion, 
though  by  a  somewhat  different  course,  as  that  of  my  learned  brother. 

Appeal  dismissed  with  costs} 


SCOTT  V.   KEY. 

Supreme  Court  or  Louisiana.     1856. 

[Reported  11  Louisiana  Annual,  232.] 

Buchanan,  J.^  This  cause  has  already  been  before  this  court,  and 
was  remanded  to  make  proper  parties  defendant.     See  9  La.  Ann.  213. 

Plaintiffs  are  the  surviving  brother  and  sisters  of  Samuel  Estill, 
deceased,  and  the  children  of  a  deceased  brother  of  said  Samuel.  They 
claim  to  be  heirs  at  law  of  Samuel  Estill.  The  defendants  are  the 
curator,  and  the  half-brothers  and  sisters,  heirs  of  one  William  Estill, 
who  was  a  natural  son  of  Samuel  Estill,  but  legitimated  by  a  statute  of 
the  State  (then  territory)  of  Arkansas,  of  which  Samuel  and  William 
Estill  were  at  the  time  residents,  passed  October  27th,  1835,  and  en- 
titled "an  act  to  legitimatize  the  son  of  Samuel  Estill."  For  a  copj'  of 
the  said  statute  in  full,  see  the  report  of  this  case  in  9th  La.  Annual. 

The  question  now  presented  for  our  decision  is,  whether  the  statute 
in  question  had  an  extraterritorial  effect,  and  enabled  William  Estill 
to  inherit,  as  the  legitimate  son  of  Samuel  Estill,  the  propertv  left  b}' 
the  latter  in  Louisiana.  The  solution  of  this  question  appertains  to  a 
distinction  (which  has  been  recognized  b}'  various  decisions  of  the  Su- 
preme Court  of  Louisiana)  of  statutes  real  and  statutes  personal.  The 
leading  case  on  this  subject  is  Saul  v.  His  Creditors,  5  Mart.  n.  s.,  in 
which  it  was  decided,  that  the  general  law  of  Virginia,  which  renders 

1  Ace.  Munro  v.  Munro,  1  Robt.  H.  L.  492  ;  Smitli  v.  Kelly,  23  Miss.  167  ;  Miller 
V.  Miller,  91  N.  Y.  315 ;  Dayton  v.  Adkisson,  45  N.  J.  Eq.  603,  17  Atl.  964.  —Ed. 
^  The  statement  of  facts,  arguments,  and  dissenting  opinion  are  omitted. — Ed. 


SECT.  IV.]  "  SCOTT   V.    KEY.  125 

property  acquired  during  marriage  the  property  of  the  husband,  is  a 
real  statute,  which  did  not  follow  a  couple,  who  had  contracted  mar- 
riage in  Virginia,  into  the  State  of  Louisiana,  where  they  resided  many 
years,  and  where  the  wife  died  ;  but  that  property  acquired  in  Louisiana 
after  their  removal  thither,  entered  into  the  matrimonial  partnership  of 
our  law,  and  on  the  dissolution  of  the  marriage,  belonged  one-half  to  the 
wife's  heirs.  And  in  the  case  of  Banna  r.  Alpuente,  6  Mart.  n.  s.  (the 
same  judge,  Porter,  who  had,  in  the  case  of  Saul,  reviewed  all  the  au- 
thorities, being  the  organ  of  the  court),  it  was  decided  that  the  laws  of 
domicil  of  origin  govern  the  state  and  condition  into  whatever  country 
the  part}-  removes  ;  iu  other  words,  that  such  laws  are  personal  statutes. 
And  those  two  decisions  are  in  harmony  with  the  definition  by  Chief 
Justice  Eustis,  of  the  real  and  personal  statute,  in  the  case  of  the 
Augusta  Insurance  Company  v.  Morton,  in  3  La.  Ann.  42G  :  "Those 
laws  are  real,"  says  the  learned  judge,  "in  contradistinction  to  per- 
sonal statutes  which  regulate  directly  property,  without  reference  to  the 
condition  or  capacity  of  its  possessor."  There  are  some  expressions  of 
Judge  Strawbridge,  in  the  case  of  Brosnahan  r.  Turner,  16  La.  439, 
which  are  relied  upon  by  plaintiffs'  counsel,  and  which  are  scarcely 
consistent  with  this  definition.  But  the  decision  in  Brosnahan  i\  Tur- 
ner turned  upon  a  totally  different  point,  the  validity  of  a  sheriff's  sale. 
The  remarks  in  Brosnahan  v.  Turner,  as  to  the  incapacity  of  the  testa- 
mentary heirs  of  Villarude  to  inherit  in  Louisiana,  uiuk-r  a  will 
probated  under  the  authority  of  a  statute  of  Florida,  are  at  best 
but  obiter  dicta^  and  besides  refer  to  a  very  different  state  of  facts 
from  that  presented  in  this  case.  Here,  an  infant,  or  minor,  son  of  a 
resident  of  Arkansas,  born  out  of  wedlock,  was,  l)y  an  act  of  the  legis- 
lature of  the  country  of  his  domicil,  legitimated,  or  put  upon  the  same 
footing  as  if  his  parents  had  been  married  at  the  time  of  his  birth. 

It  is  admitted  of  record,  that  William  Estill,  then  a  small  child.  Octo- 
ber 27,  1835,  resided  with  his  natural  father,  Samuel  Estill,  in  Ar- 
kansas, who  was  then  a  citizen  of  Arkansas,  and  resided  in  Arkansas, 
and  that  both  of  them  resided  therein  for  several  years  before  1835, 
and  also  continued  to  reside  in  Arkansas  until  some  time  between 
1837  and  1841."  Arkansas  was  then  the  hona  fide  domicil  of  the 
Estills,  at  the  time  of  the  passage  of  the  act  of  the  legislature  in 
question.  William  was,  by  law,  the  legitimate  son  of  Samuel  in  Arkan- 
sas. Can  it  be  said  that  he  lost  his  status  by  crossing  the  State  line 
into  the  frontier  parish  of  Carroll,  some  years  afterwards  ?  We  think 
not.  The  heritable  quality  of  legitimacy  which  he  had  received  from 
the  legislature  of  the  State  of  his  residence  accompanied  him  when 
he  changed  his  domicil. 

The  error  of  the  judgment  appealed  from  consists  in  regarding 
William  Estill  as  illegitimate,  at  the  time  of  his  father's  death.  But  he 
was  not  so.  The  original  taint  of  illegitimacy  had  been  removed  by 
the  act  of  the  legislature.  Legitimacy  and  illegitimacy  are  the  re- 
sult of  positive  laws,  which  differ  very  materially  in  different  countries. 


126  SCOTT   V.   KEY.  [CHAP.  VL 

To  illustrate  this  idea,  suppose  William  Estill  had  been  born  in  Louisi- 
ana, and  that  after  his  birth  his  father  and  mother  had  got  married  in 
Louisiana,  and  subsequentl}'  to  their  marriage  removed  with  their  child 
to  Arkansas.  Their  marriage  after  his  birth  would  have  legitimated 
their  offspring  by  the  law  of  their  domicil ;  j'et  b}-  the  law  of  Arkansas 
a  subsequent  marriage  would  have  not  produced  that  effect.  Neverthe- 
less, the  status  of  legitimacy  being  acquired  in  Louisiana  would  have 
accompanied  him  into  Arkansas.  There  are  many  precedents,  in  the 
legislation  of  various  States  of  this  Union,  of  legitimation  by  act  of  the 
legislature,  and  particularly  in  Louisiana.  This  seems  identical  with 
the  legitimation  joer  rescriptum  principis  of  the  Roman  law. 

Voet,  Commentarius  ad  Pandectas,  lib.  25,  tit.  7,  §§  4  and  13. 

If  it  is  true  that  a  general  law  of  the  place  of  domicil,  changing  the 
status  of  its  citizens  according  to  circumstances,  is  a  personal  statute, 
accompanying  the  party  to  every  other  countr}',  provided  the  circum- 
stances which  operate  such  change  have  occurred  before  the  change  of 
domicil,  which  we  consider  to  be  the  doctrine  settled  in  Louisiana,  a 
fortiori,  is  a  special  law,  removing  a  disability  from  a  particular  citizen 
by  name,  such  a  statute?  The  constitutional  power  of  the  legislature 
to  enact  such  exceptional  enabling  statutes  was  drawn  directly  in  ques- 
tion, and  ruled  affirmatively,  in  the  case  of  Pritchard  v.  Citizens  Bank, 
8  La.  133.  The  maxim  cited  by  Stor^-,  Conflict  of  Laws,  §  51,  from 
Boullenois,  "  Habilis  vel  inhabilis  in  loco  domicilii,  est  habilis  vel  inha- 
bills  in  omni  loco,"  must  therefore  be  deemed  law  in  Louisiana. 

And  is  it  not  correct  to  say,  that  the  statute  of  Arkansas,  to  legiti- 
mate William  Estill  (which  is  a  personal  statute),  conflicted  with  the 
statute  of  distributions  of  Louisiana  (which  is  a  real  statute)  ;  and  con- 
sequentl}',  as  was  held  in  Saul's  case,  is  overruled  by  the  latter  statute  ? 
By  the  Louisiana  statute  of  distributions,  the  legitimate  son  inherits  in 
preference  to  the  brothers  and  sisters  of  the  deceased.  By  the  effect 
of  the  statute  of  Arkansas,  William  Estill  was  the  legitimate  son  of 
Samuel  Estill.  Upon  the  demise  of  Samuel  Estill  in  Louisiana,  in 
1849,  fourteen  years  after  that  statute,  William  Estill,  as  his  legitimate 
son,  was  his  heir,  by  the  law  of  Louisiana. 

In  confirmation  of  this  view  of  the  subject,  we  may  quote  the  lan- 
guage of  the  High  Court  of  Errors  and  Appeals  of  Mississippi,  in  the 
case  of  Smith  v.  Kell}',  23  Miss.  Rep.,  170:  "It  is  a  well  settled 
principle,  that  the  status  or  condition,  as  to  the  legitimacy,  must  be 
determined  by  reference  to  the  law  of  the  country  where  such  status  or 
condition  had  its  origin." 

Judgment  of  the  District  Court  reversed  ;  and  judgment  for  defend- 
ants, with  costs  in  both  cases. 

Spofford,  J.  It  was  competent  for  the  legislature  of  Arkansas,  the 
domicil  of  its  origin,  to  fix  the  status  of  William  Estill. 

In  substance  and  effect,  that  legislature  gave  him  the  status  of  a 
legitimate  son  of  Samuel  Estill. 

The  Arkansas  statute,  legitimating  William  Estill,  was  a  personal 
statute. 


SECT.  IV.]  BARNUM    V.   BARNUM,  127 

Therefore,  the  status  of  a  legitimate  son  of  Samuel  Estill  would  ac- 
company "William  Estill  into  whatever  country  he  might  go. 

He  came  hither  with  the  status.  He  inherited,  by  our  law,  from  his 
father,  Samuel  Estill,  because  he  was  to  all  intents  and  purposes  a 
legitimate  son,  having  become  so  by  the  law  of  the  domicil  of  his 
origin,  and  not  in  fraud  of  our  law,  nor  in  violation  of  its  polic}'. 

I,  therefore,  concur  in  the  opinion  and  judgment  of  Mr.  Justice 
Buchanan. 

Merrick,  C.  J.,  dissenting. 


BARNUM  V.  BARNUM. 

Court  of  Appeals  of  Maryland.     1875. 

[Reported  42  Maryland,  251.] 

This  was  a  bill  for  the  distribution  of  the  property  of  David  Barnum. 
John  R.  Barnum  claimed  a  distributive  share  as  grandson  of  David  and 
son  of  Richard  Barnum.  John  R.  Barnum  was  born  in  Arkansas, 
while  his  father  was  domiciled  there  ;  the  court,  however,  decided,  that 
his  parents  were  not  married,  and  that  he  was  illegitimate.  He  having 
died  during  the  progress  of  the  suit,  his  representative  appealed.  ^ 

Alvey,  J.  It  is  contended  that  notwithstanding  there  may  have  been 
no  marriage  between  Dr.  Barnum  and  Caroline  Butler,  yet  by  the  opera- 
tion of  the  act  of  the  legislature  of  Arkansas,  before  referred  to,  John 
R.  Barnum  was  rendered  legitimate,  as  if  a  valid  marriage  had  taken 
place,  and  was  therefore  capable  of  taking  whatever  right  that  would 
or  could  devolve  on  any  legitimate  child  of  his  father ;  that  the  act  was 
retroactive,  and  related  back  to  the  time  of  the  birth  of  the  child  de- 
clared to  be  heir. 

In  this,  however,  we  do  not  agree  with  the  counsel  of  the  claimants. 
As  we  have  seen,  the  act  makes  no  reference  to  any  marriage,  and  in 
no  sense  could  operate  to  confirm  any  defective  or  imperfect  marriage. 
Its  operation  does  not  even  depend  upon  the  fact  that  John  R.  Barnum 
was  the  child  of  Richard  Barnum.  It  simply,  by  force  of  the  law  itself, 
and  not  of  the  circumstances  of  birth  or  relationship,  gave  to  John  R. 
Barnum  a  personal  status,  with  capacity  to  inlierit  from  Richard  Bar- 
num as  heir.  This  act  could  have  no  extraterritorial  operation  what- 
ever, except  as  to  any  rights  that  may  have  been  acquired  under  it,  in 
the  State  of  Arkansas.  As  to  such  rights  they  would  be  respected 
everywhere.  Sto.  Confl.  L.,  §  §  101,  102.  But  as  to  capacity  to 
acquire  property  beyond  the  State  passing  the  act,  by  virtue  of  the 
particular  status  given  the  party,  that  tlie  legislature  could  not  confer. 
Even  if  the  act  had  professed  to  legitimate  John  R.  r.arnum,  without 

1  Thi.s  short  statemoiit  iw  substituted  for  that  of  tlio  reporter.  Only  so  much  of  the 
opinion  as  discusses  the  legitimacy  of  John  K.  liaruum  is  given.  —  E». 


128  KOSS    V.    ROSS.  [chap.  VI. 

reference  to  previous  marriage,  it  could  have  no  operation  here,  and  no 
rio-hts  involved  in  this  case  could  be  affected  by  it.  This  would  seem 
to  be  clear  both  on  reason  and  authorit}-.  5  Com.  Dig.  Parliament 
(K),  p.  301  ;  Birtwhistle  v.  Vardill,  5  B.  &  Cr.,  438  ;  Houlditch  v.  Mar- 
quess of  Donegal],  2  Clark  &  Finn.,  476  ;  Smith  v.  Derr's  Adm 'rs,  34 
Penn.  St.,  126  ;  Sto.  Confl.  L.,  §§  87,  87  a. 

The  claim,  therefore  made  in  the  right  of  John  R.  Barnum,  must  be 
rejected.^ 


ROSS   V.   ROSS. 

Supreme  Judicial  Court  of  Massachusetts.     1880. 

[Reported  129  Massachusetls,  243.] 

Gray,  C.  J.'^  This  case  presents  for  adjudication  the  question  which 
it  was  attempted  to  raise  in  Ross  v.  Ross,  123  Mass.  212,  namely, 
whether  a  child  adopted,  with  the  sanction  of  a  judicial  decree,  and 
with  the  consent  of  his  father,  by  another  person,  in  a  State  where  the 
parties  at  the  time  have  their  domicil,  under  statutes  substantially 
similar  to  our  own,  and  which,  like  ours,  give  a  child  so  adopted  the 
same  riglits  of  succession  and  inheritance  as  legitimate  offspring  in  the 
estate  of  the  person  adopting  him,  is  entitled,  after  the  adopting  parent 
and  the  adopted  child  have  removed  their  domicil  into  this  Common- 
wealth, to  inherit  the  real  estate  of  such  parent  in  this  Commonwealth 
upon  his  dying  here  intestate. 

The  question  how  far  a  child,  adopted  according  to  law  in  the  State 
of  the  domicil,  can  inherit  lands  in  another  State,  was  mentioned  by 
Lord  Brougham  in  Doe  v.  Vardill,  7  CI.  &  Fin,  895,  898,  and  by  Chief 
Justice  Lowrie  in  Smith  v.  Derr,  34  Penn.  St.  120,  128,  but,  so  far  as 
we  are  informed,  has  never  been  adjudged.  It  must  therefore  be  de- 
termined upon  a  consideration  of  general  principles  of  jurisprudence, 
and  of  the  judicial  application  of  those  principles  in  analogous  cases. 

As  a  general  rule,  when  no  rights  of  creditors  intervene,  the  succes- 
sion and  disposition  of  personal  property  are  regulated  by  the  law  of 
the  owner's  domicil.  It  is  often  said,  as  in  Cutter  v.  Davenport,  1 
Pick.  81,  86,  cited  by  the  tenent,  to  be  a  settled  principle,  that  "the 
title  to  and  the  disposition  of  real  estate  must  be  exclusively  regulated 
In'  the  law  of  the  place  in  which  it  is  situated."  But  so  general  a 
statement,  without  explanation,  is  liable  to  mislead.  The  question  in 
that  case  was  of  the  validity  of  an  assignment  of  a  mortgage  of  real 
estate  ;  and  there  is  no  doubt  that  by  our  law  the  validity,  as  well  as 
the  form,  of  any  instrument  of  transfer  of  real  estate,  whether  a  deed 
or  a  will,  is  to  be  determined  bj'  the  lex  rei  sitce.     Goddard  v.  Sawyer, 

1  Ace.  Linf^en  i\  Lingen,  45  Ala.  410.  —  Ed. 
*  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT.  IV.]  ROSS   V.   ROSS.  129 

y  Allen,  78;  Sedgwick  v.  Latlin,  10  Alleu,  430,  433;  United  States 
V.  Crosby,  7  Crancli,  115;  Clark  v.  Graham,  6  Wheat.  577;  Kerr  v. 
Moon,  9  Wheat.  oGO  ;   McCormick  c.  SuUivaut,  10  Wheat.   192. 

It  is  a  general  principle,  that  the  status  or  condition  of  a  person, 
the  relation  in  which  he  stands  to  another  person,  and  by  which  he  is 
qualified  or  made  capable  to  take  certain  rights  in  that  other's  property, 
is  fixed  by  the  law  of  the  domicil ;  and  thai  this  status  and  capacity  are 
to  be  recognized  and  upheld  in  every  other  btate,  so  far  as  they  are  not 
inconsistent  with  its  own  laws  and  policy.  Subject  to  this  limitation, 
upon  the  death  of  any  man,  the  status  of  those  who  claim  succession  or 
inlieritance  in  his  estate  is  to  be  ascertained  by  the  law  under  which  that 
status  was  acquired  ;  his  personal  property  is  indeed  to  be  distributed 
according  to  the  law  of  his  domicil  at  the  time  of  his  death,  and  his  real 
estate  descends  according  to  the  law  of  the  place  in  which  it  is  situated  ; 
but,  in  either  case,  it  is  according  to  those  provisions  of  that  law  which 
regulate  the  succession  or  the  inheritance  of  persons  having  such  a 
status. 

The  capacity  or  qualification  to  inherit  or  succeed  to  property,  which 
is  an  incident  of  the  status  or  condition,  requiring  no  action  to  give  it 
effect,  is  to  be  distinguished  from  the  capacity  or  competency  to  enter 
into  contracts  that  confer  rights  upon  others.  A  capacity  to  take  and 
have  differs  from  a  capacity  to  do  and  contract ;  in  short,  a  capacity  of 
holding  from  a  capacity  to  act.  Generally  speaking,  the  validity  of  a 
personal  contract,  even  as  regards  the  capacity  of  the  party  to  make  it, 
as  in  the  case  of  a  married  woman  or  an  infant,  is  to  be  determined  by 
the  law  of  the  State  in  which  it  is  made.  Milliken  v.  Pratt,  125  Mass. 
374,  and  authorities  cited. ^ 

The  legal  adoption  by  one  person  of  the  offspring  of  another,  giving 
him  the  status  of  a  child  and  heir  of  the  parent  by  adoption,  was  un- 
known to  the  law  of  England  or  of  Scotland,  but  was  recognized  by  the 
Roman  law,  and  exists  in  many  countries  on  the  continent  of  Europe 
which  derive  their  jurisprudence  from  that  law.  Co.  Lit.  7  b,  237  h  ;  4 
Phillimore,  §  531  ;  Mackenzie's  Roman  Law,  120-124  ;  Wiiart.  Confl. 
§  251 .  It  was  long  ago  introduced,  from  the  law  of  France  or  of  Spain, 
into  Louisiana  and  Texas,  and  more  recently,  at  various  times  and  by 
different  statutes,  throughout  New  England,  and  in  New  York,  New 
Jersey,  Pennsylvania,  and  a  large  proportion  of  the  other  States  of  the 
Union.  Fuselier  v.  Masse,  4  La.  423  ;  Vidal  v.  Commagere,  13  La. 
Ann.  516  ;  Teal  v.  Sevier,  2G  Tex.  516  ;  Miss.  St.  1846  ;  Hutch.  Miss. 
Code,  501  ;  Alabama  Code  of  1852,  §  2011 ;   N.  Y.  St.  1873,  e.  830  ; 

1  The  court,  in  omitted  portions  of  the  opinion,  cited  and  discussed  at  length  the 
.  following  cases,  among  others:  Doe  v.  Vardill,  2  C'l.  &  F.  571  ;  Sliedden  v  Patrick.  5 
Paton,  194,  1  Macii-  .5.35  ;  Stratlimoro  Pocriige,  6  Paton,  045  ;  Koso  v.  Uoss,  4  Wils.  &  Sh. 
289  ;  lion's  EstaU;,  4  Drewry,  194  ;  Skoltowo  v.  Young,  L.  U.  H  Kil-  474;  Loring  (•. 
Thorndike,  5  All.  257  ;  Smith  r.  Kellv,  23  Miss.  107  ;  Scott  v.  Key,  11  La.  Ann.  2.12  ; 
Barnum  v.  Barnuni,  42  Md.  251  ;  Smith  ;•.  Derr,  34  Pa.  St.  126;  Harvey  v.  Ball,  32 
Ind.  98;  Lingcn  v.  Lingen,  45  Ala.  410  ;  Com.  v.  Nancrede,  32  Pa.  St.  389  ;  Shafer  v. 
Eneu,  54  Pa.  St.  304.  —  Va>. 

vol..    11.  — ■) 


130  Koss  V.  ROSS.  [chap.  \i 

N.  J.  Rev.  Sts.  of  1877,  §  1345  ;  Penn  St.  1855,  e.  456  ;  Purd.  Dig.  61 ; 
1  Southern  Law  Rev.  (N.  S.)  70,  79  and  note,  citing  statutes  of  other 
States.  One  of  the  first,  if  not  the  very  first,  of  the  States  whose  juris- 
prudence is  based  exclusively  on  the  common  law,  to  introduce  it,  was 
Massachusetts.  .  .  . 

The  statute  of  Pennsylvania  of  1855,  which  is  made  part  of  the  case 
stated,  and  under  which  the  demandant  was  adopted  by  the  intestate  in 
1871,  while  both  were  domiciled  in  that  State,  corresponds  to  these 
statutes  of  this  Commonwealth  in  most  respects.  Like  them,  it  per- 
mits any  inhabitant  of  the  State  to  petition  for  leave  to  adopt  a  child  ;  it 
requires  the  petition  to  be  presented  to  a  court  in  the  county  where  the 
petitioner  resides  ;  it  requires  the  consent  of  the  parents  or  surviving  par- 
ent of  the  child  ;  it  authorizes  the  court,  upon  being  satisfied  that  it  is  fit 
and  proper  that  such  adoption  should  take  effect,  to  decree  that  the 
child  shall  assume  the  name,  and  have  all  the  rights  and  duties  of  a 
child  and  heir,  of  the  adopting  parent ;  and  it  makes  the  record  of  that 
decree  evidence  of  that  fact. 

The  statute  of  Pennsylvania  difll'ers  from  our  own  only  in  not  requir- 
ing the  consent  of  the  petitioner's  wife,  and  of  the  child  if  more  than 
fourteen  years  of  age;  in  omitting  the  words  "as  if  born  in  lawful 
wedlock  "  in  defining  the  effect  of  the  adoption  ;  in  also  omitting  any 
exception  to  the  adopted  child's  capacity  of  inheriting  from  the  adopt- 
ing parent ;  and  in  expressly  providing  that,  if  the  adopting  parent  has 
other  children,  the  adopted  child  shall  share  the  inheritance  with  them 
in  case  of  intestacy,  and  he  and  they  shall  inherit  through  each  other 
as  if  all  had  been  lawful  children  of  the  same  parent.  .  .  . 

The  law  of  the  domicil  of  the  parties  is  generally  the  rule  which 
governs  the  creation  of  the  status  of  a  child  b}'  adoption.  Foster  v. 
Waterman,  124  Mass.  592  ;  4  Phillimore,  §  531  ;  Whart.  Confl.  §  251. 
The  status  of  the  demandant,  as  adopted  child  of  the  intestate,  in  the 
State  in  which  both  were  domiciled  at  the  time  of  the  adoption,  was 
acquired  in  substantially  the  same  manner,  and  was  precisely  the  same 
so  far  as  concerned  his  relation  to,  and  ,his  capacity  to  inherit  the  estate 
of,  the  adopting  father,  as  that  which  he  might  have  acquired  in  this 
Commonwealth  had  the  parties  been  then  domiciled  here.  In  this 
respect,  there  is  no  conflict  between  the  laws  of  the  two  Common- 
wealths. The  difference  between  them  in  regard  to  the  consent  of  the 
wife  of  the  adopting  father,  and  to  the  inheritance  of  estates  limited  to 
heirs  of  the  body,  or  inheritance  from  the  kindred,  or  through  the 
children,  of  such  father,  are  not  material  to  this  case,  in  which  the  only 
question  is  whether  the  adopted  child  or  a  brother  of  the  adopting 
father  has  the  better  title  to  land  in  the  absolute  ownership  of  such 
father  at  the  time  of  his  death.  AVhatever  eff'ect  the  want  of  formal 
consent,  on  the  part  of  the  wife  of  the  intestate,  to  the  adoption  of  the 
demandant,  might  have,  if  she  were  claiming  any  interest  in  her  hus- 
band's estate,  it  can  have  no  bearing  upon  this  controvers}'  between  the 
adopted  child  and  a  collateral  heir. 


SECT.  IV.]  KOSS    V.    ROSS.  131 

The  tenant  in  his  argument  laid  much  stress  on  the  words  of  the  stat- 
ute of  descents  and  of  the  statutes  of  adoption  of  this  Commonwealth. 

The  statute  of  descents  which  was  in  force  at  the  time  of  the  death 
of  the  intestate  in  1873  enacts  that  when  a  person  dies  intestate,  seised 
of  any  real  estate,  it  shall  descend,  subject  to  his  debts,  and  saving 
rights  of  homestead,  "  in  the  manner  following  :  First.  In  equal  shares 
to  his  children,  and  to  the  issue  of  an}-  deceased  child  by  right  of  rep- 
resentation ;  and  if  there  is  no  child  of  the  intestate  living  at  his 
death,  then  to  all  his  other  lineal  descendants,"  etc.  ''Second.  If  he 
leaves  no  issue,  then  to  his  father.  Third.  If  he  leaves  no  issue  nor 
father,  then  in  equal  shares  to  his  mother,  brothers,  and  sisters,"  etc. 
"Eighth.  If  the  intestate  leaves  a  widow  and  no  kindred,  his  estate 
shall  descend  to  his  widow ;  and  if  the  intestate  is  a  married  woman 
and  leaves  no  kindred,  her  estate  shall  descend  to  her  husband.  Ninth. 
If  the  intestate  leaves  no  kindred,  and  no  widow  or  husband,  his  or  her 
estate  shall  escheat  to  the  Commonwealth."  Gen,  Sts.  c.  91,  §  1.  See 
also  St.  1876,  c.  220. 

But  this  section  must  be  understood  as  merely  laying  down  general 
rules  of  inheritance,  and  not  as  completely  and  accurately  defining  how 
the  status  is  to  be  created  which  gives  the  capacity  to  inherit.  It  does 
not  undertake  to  prescribe  who  shall  be  considered  a  child,  or  a  widow, 
o^  a  husband,  or  what  is  necessary  to  constitute  the  legal  relation  of 
husband  and  wife,  or  of  parent  and  child.  Those  requisites  must  be 
sought  elsewhere.  The  words  "children"  and  "child,"  for  instance, 
in  the  first  clause,  "  issue,"  in  the  phrase  "if  he  leaves  no  issue,"  in 
subsequent  elauaes,  and  "kindred,"  in  the  last  two  clauses  of  this 
section,  clearly  include  a  child  made  legitimate  by  the  marriage  of  its 
parents  and  acknowledgment  by  the  father  after  its  birth  under  §  4  of 
the  same  chapter,  or  a  child  adopted  under  the  provisions  of  c.  110  of 
the  General  Statutes,  or  c.  310  of  the  Statutes  of  1871. 

These  statutes,  after  providing  how  a  child  may  be  adopted  in  this 
Commonwealth  with  the  sanction  of  a  decree  of  the  Probate  Court  in 
the  county  in  which  the  adopting  parent  resides  (or,  under  the  St.  of 
1871,  in  the  county  where  the  child  resides  if  the  adopting  parent  is 
not  an  inhabitant  of  this  Commonwealth),  enact  that  a  child  "so 
adopted  "  shall  be  deemed,  for  the  purpose  of  inheritance,  and  other 
legal  consequences  of  the  natural  relation  of  parent  and  child,  to  be 
the  child  of  the  parent  by  adoption.  St.  1851,  c.  324, §  6  ;  Gen.  Sts.  c. 
110,  §  7;  St.  1871,  c.  310,  §  8.  It  is  argued  that  the  words  "so 
adopted  "  imply  that  children  otherwise  adopted  are  incapable  of  in- 
lieriting  lands  in  this  Commonwealth.  But  it  appears  to  us  that  these 
words,  in  the  connection  in  which  they  stand,  warrant  no  such  implica- 
tion ;  and  that  the  legislature,  throughout  these  statutes,  had  solely  in 
view  adoption  by  or  of  inhabitants  of  this  Commonwealth,  and  did  not 
intend  either  to  regulate  the  manner,  or  to  define  the  eifects,  of  adop- 
tion by  and  of  inhabitants  of  other  States  according  to  the  law  of  their 
domicil. 


132  BLYTHE    V.    AYRES.  [CHAP.  VI. 

We  are  not  aware  of  .an}'  case,  in  England  or  America,  in  wliich  a 
change  of  status  in  the  country  of  the  domicil,  with  the  formalities 
prescribed  "by  its  laws,  has  not  been  allowed  full  effect,  as  to  the  capac- 
ity thereby  created  of  succeeding  to  and  inheriting  property,  real  as 
well  as  personal,  in  any  other  country  the  laws  of  which  allow  a  like 
change  of  status  in  a  like  manner  with  a  like  effect  under  like  circum- 
stances. 

We  are  therefore  of  opinion  that  the  legal  status  of  child  of  the  intes- 
tate, once  acquired  by  the  demandant  under  a  statute  and  by  a  judicial 
decree  of  the  State  of  Pennsylvania,  while  the  parties  were  domiciled 
there,  continued  after  their  removal  into  this  Commonwealth,  and  that 
by  virtue  thereof  the  demandant  is  entitled  to  maintain  this  action. 

It  is  worthy  of  mention  (although  it  cannot  of  course  affect  the  rights 
of  inheritance  which  had  absolutely  vested  on  the  death  of  the  intes- 
tate ;  Tirrel  v.  Bacon,  3  Fed.  Rep.  62)  that  b}-  a  recent  statute  of  this 
Commonwealth  "  an}'  inhabitant  of  an}'  other  State,  adopted  as  a  child 
in  accordance  with  the  laws  thereof,  shall,  upon  proof  of  such  fact,  be 
entitled  in  this  Commonwealth  to  the  same  rights,  as  regards  succes- 
sion to  propert}',  as  he  would  have  enjoyed  in  the  State  where  such 
act  of  adoption  was  executed,  except  in  so  far  as  they  conflict  with  the 
provisions  of  this  act."     St.  1876,  c.  213,  §  11. 

Judgment/or  the  demandant.^ 


BLYTHE   V.   AYRES. 

Supreme  Court  of  California.     1892. 

[Reported  96  California,  532.] 

Garoutte,  J.^  This  is  an  action  instituted  under  section  1664  of 
the  Code  of  Civil  Procedure  by  the  plaintiff,  a  minor,  through  her 
guardian,  to  determine  the  heirship  and  title  to  the  estate  of  Thomas  H. 
Blytlie,  deceased.  .  ,  .  Plaintiff^s  claim  is  based  upon  sections  230  and 
1387,  respectively,  of  the  Civil  Code  of  California.  Section  230  reads 
as  follows  :  "  The  father  of  an  illegitimate  child,  by  publicly  acknowl- 
edging it  as  his  own,  receiving  it  as  such,  with  the  consent  of  his  wife, 
if  he  is  married,  into  his  family,  and  otherwise  treating  it  as  if  it  were 
a  legitimate  child,  thereby  adopts  it  as  such  ;  and  such  child  is  there- 
upon deemed  for  all  purposes  legitimate  from  the  time  of  its  birth. 
The  foregoing  provisions  of  this  chapter  do  not  apply  to  such  an 
adoption."  Section  1387,  as  far  as  it  pertains  to  the  matters  involved 
in  this  litigation,  provides :  "  Every  illegitimate  child  is  an  heir  of  the 

1  Ace.  Van  Matre  r.  Sankey,  148  111.  5.36,  36  N.  E.  628  ;  Gray  v.  Holmes,  57  Kan. 
217,  45  Pac.  596  ;  Melvin  v.  Martin,  18  R.  I.  650,  30  Atl.  467.  And  see  Estate  of  Sun- 
derland, 60  la.  732,  13  N.  W.  655.  — Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  IV.]  BLYTIIE    V.    AYRES.  133 

person  who,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledges  himself  to  be  the  father  of  such  child."  .   .   . 

The  facts  found  by  the  court  which  face  us  while  we  are  engaged  in 
a  consideration  of  the  first  branch  of  this  subject  ma}'  be  succinctly  and 
substantially  stated  as  follows  :  (^1  j  That  plaintiff  was  born  in  Eno-land, 
upon  December  18,  1873,  and  was  the  issue  of  Thomas  II.  Blvthe  and 
Julia  Perry  ;  (2)  that  Julia  Perry  was  a  native  of  England,  domiciled 
therein,  and  continued  to  there  reside  until  one  month  after  the  death 
of  said  Blythe  ;  (3)  that  plaintiff  remained  in  England  until  after  the 
death  of  Blythe,  when  she  came  to  California,  and  said  Blythe  was 
never  at  any  time  within  any  of  the  countries  of  Europe  after  the  29th 
day  of  August,  1873  ;  (4)  that  said  Blythe  was  a  citizen  of  the  United 
States  and  of  the  State  of  California,  domiciled  in  said  State,  and  died 
intestate  therein  April  4.  1883,  leaving  surviving  him  no  wife,  no  father, 
no  mother,  and  no  child,  save  and  except  said  Elorence  Blythe,  the 
plaintiff  herein  ;  (5)  that  said  Thomas  H.  Blythe  and  said  Julia  Perry 
never  were  married,  and  said  plaintiff  was  begotten  while  said  Blythe 
was  temporarily  sojourning  in  England,  and  was  born  after  said  Bljthe's 
return  to  California,  and  that  said  Blythe  never  was  married. 

Before  passing  to  the  merits  of  the  discussion,  we  pause  a  moment  to 
say  that  the  verb  "adopts,"  as  used  in  section  230,  is  used  in  the  sense 
of  "  legitimates,"  and  that  the  acts  of  the  father  of  an  illegitimate  child, 
if  filling  the  measure  required  by  that  statute,  would  result,  strictly 
speaking,  in  the  legitimation  of  such  child,  rather  than  in  its  adoption. 
Adoption,  properly  considered,  refers  to  persons  who  are  strangers  in 
blood;  legitimation,  to  persons  where  the  blood  relation  exists.  (See 
law  dictionaries,  —  Bouvier's,  Black's,  Anderson's,  and  Rapalje's.) 
This  is  the  distinguishing  feature  between  adoption  and  legitimation,  as 
recognized  by  all  the  standard  law  writers  of  the  day  who  have  written 
upon  the  subject ;  and,  for  the  reason  that  the  text  writers  and  the 
decisions  of  courts  to  which  we  shall  look  for  light  and  counsel  treat  the 
subject  as  a  question  of  legitimation,  we  shall  view  the  matter  from  that 
standpoint. 

The  section  is  broad  in  its  terms.  It  contains  no  limitations  or  con- 
ditions, and,  to  the  extent  of  the  power  vested  in  the  legislature  of  the 
State,  applies  to  all  illegitimates,  wherever  located,  and  wherever  born. 
The  legislature  has  not  seen  fit  to  make  any  exception  to  its  operation, 
and,  as  was  said  by  Taney,  C.  J.,  in  Brewer  v.  Blougher,  U  Pet.  178, 
when  considering  a  quite  similar  provision  of  a  statute  :  "In  the  case 
before  us  the  words  are  general,  and  include  all  persons  who  come 
within  the  description  of  illegitimate  cliildren  ;  .  .  .  and  when  the 
legislature  speaks  in  general  terms  of  children  of  that  description,  with- 
out making  any  exceptions,  we  are  bound  to  suppose  they  design  to 
include  the  whole  class."  Bar,  in  his  work  on  International  Law  (page 
434),  says:  "  Legitimation  of  bastards,  eitiier  by  subsequent  maniage 
or  by  an  act  of  the  government  {rescriptum  ]>rmci/>!s)^  is  nothing  hnt 
a  legal  equalization    of  certain  children  illegitinuitely  begotten  with 


134  BLYTHE  V.    AYRES.  [CHAP.  VI. 

legitimate  children."  In  other  words,  the  object  and  effect  of  section 
230  is  to  change  the  status  and  capacity  of  an  illegitimate  child  to  the 
status  and  capacity  of  a  child  born  in  lawful  wedlock.  .  .  . 

The  contention  of  appellants  that  the  status  of  a  person  residing  in  a 
foreio-n  country,  and  a  subject  thereof,  cannot  be  changed  by  acts  per- 
formed in  California  under  a  provision  of  the  law  of  our  State  legisla- 
ture, cannot  be  supported  as  a  rule  without  many  exceptions,  and  to 
the  extent  of  those  exceptions  a  State  law  must  be  held,  by  its  own 
courts  at  least,  to  have  extraterritorial  operation  ;  and  this  principle  of 
the  foreign  operation  of  State  laws  even  goes  to  the  extent  that  in  many 
instances  such  laws  are  recognized  and  given  effect  by  the  courts  of 
that  particular  foreign  jurisdiction.  The  doctrine  of  extraterritorial 
operation  of  State  laws  is  fully  exemplified  in  the  case  of  Hoyt  v. 
Thompson,  5  N.  Y.  340.  ... 

Section  215  of  the  Civil  Code  is  as  follows:  "A  child  born  before 
wedlock  becomes  legitimate  by  the  subsequent  marriage  of  its  parents." 
This  section  takes  a  wide  range.  Its  operation  is  not  confined  within 
State  lines.  It  is  as  general  as  language  can  make  it.  Oceans  furnish 
no  obstruction  to  the  effect  of  its  wise  and  beneficent  provisions  ;  it  is 
manna  to  the  bastards  of  the  world.  If  Blythe,  subsequent  to  the  birth 
of  plaintiff,  had  returned  to  England,  and  married  Julia  Perry,  such 
marriage,  under  the  provision  of  law  just  quoted,  ipso  facto  would  have 
resulted  in  the  legitimation  of  Florence  Blythe.  Then,  in  answer  to 
the  interrogatory  of  appellants  already  noticed,  we  say  that  she  was  so 
domiciled  that  by  the  laws  of  California  she  could  have  been  changed 
from  bastardy  to  legitimacy.  Our  statute,  conjoined  with  principles  of 
international  law,  would  have  changed  her  bastardy  to  legitimacy  in  the 
world  at  large  ;  and  regardless  of  international  law,  and  regardless  of 
all  law  of  foreign  countries,  our  statute  law  alone  would  have  made  her 
legitimate  in  the  world  at  large,  whenever  and  however  that  question 
should  present  itself  in  the  courts  of  California.  And  we  also  have 
here  a  most  striking  illustration  of  the  extraterritorial  operation  of 
California  law.  We  have  the  effect  of  a  statute  of  this  State  attaching 
to  a  state  of  facts  where  the  mother  and  child  were  never  in  California, 
but  residing  and  domiciled  in  England,  and  the  marriage  taking  place 
in  England  ;  and  California  law,  as  stated,  has  the  effect  upon  that 
child  to  give  it  a  different  domicil,  and  completely  change  its  status. 
Such  would  not  only  be  the  effect  of  this  law  upon  the  child  viewed  by 
California  courts,  but  such  would  be  its  effect  viewed  by  the  courts  of 
England,  where  the  child  was  domiciled,  and  that,  too.  notwithstanding 
no  provisions  of  law  are  there  found  for  the  legitimation  of  bastards. 
This  assumption  of  Blytlie's  marriage  to  Julia  Perry,  in  its  facts,  forms 
an  exact  photograph  of  the  celebrated  case  of  Munro  v.  Munro,  found 
in  1  Rob.  App.  492  ;  a  case  crystallizing  the  judicial  thought  of  the  age 
upon  the  subject,  and  commanding  the  respect  of  all  writers  and  judges 
upon  the  law  of  domicil.   .   .   . 

Appellants  insist  tliat  the  domicil  of  the  child  irrevocably  fixes  that 
child's  status.      In  tliis  case,  stibsoquont  to  tho  chiM's  birtli.  Julia  Perry 


SECT.  IV.]  BLYTIIE    V.    AYUES.  135 

married  a  domiciled  Englishman  ;  hence  her  domicil  was  permanently 
established  in  England,  and  for  that  reason  the  child's  domicil,  being 
the  mother's  domicil,  was  permanently  established  there.  Under 
appellants'  reasoning  this  state  of  facts  would  forever  debar  the  child 
from  legitimation,  for  even  its  presence  in  California  would  avail  noth- 
ing as  against  its  English  domicil.  Jf  such  be  good  law,  section  226 
of  the  Civil  Code,  expressly  authorizing  the  adoption  of  minors  of  other 
States,  is  bad  law,  for  it  is  squarely  in  conflict  with  those  views.   .   .  . 

AVe  have  quoted  thus  extensively  from  the  authorities  upon  the  sub> 
ject  of  domicil  as  specially  bearing  upon  the  question  of  legitimatlo 
2>er  suhseqiiens  matrimonium  for  the  reason  that  we  are  unable  to 
perceive  any  difference  in  the  general  principles  of  law  bearing  upon 
that  character  of  legitimation  and  in  those  principles  bearing  upon 
other  forms  of  legitimation  authorized  by  the  same  statute.  The  only 
distinction  claimed  bj-  appellants  is  that  legitimation  founded  upon 
subsequent  marriage  is  based  upon  the  fiction  of  law  that  a  previous 
consent  existed,  and  the  marriage  related  back  to  that  time.  Upon 
this  point  it  w^ould  seem  all-sufficient  to  say  that  our  statute  does  not 
recognize  such  a  fiction,  and  its  eflTective  operation  in  no  wise  depends 
upon  the  assumption  of  its  presence.  Times  are  not  what  they  once 
were,  and  we  live  in  an  age  too  practical  to  build  our  law  upon  the 
unstable  foundation  of  fictions.  .  .  . 

Legitimation  is  the  creature  of  legislation.  Its  existence  is  soleh' 
dependent  upon  the  law  and  policy  of  each  particular  sovereignty.  The 
law  and  pMicy  of  this  State  authorize  and  encourage  it,  and  there  is  no 
principle  upon  which  California  law  and  policy,  when  invoked  in  Cali- 
fornia courts,  shall  be  made  to  surrender  to  the  antagonistic  law  and 
policy  of  Great  Britain.  .  .  . 

PlaintiflT  was  the  child  of  Blythe,  who  was  a  domiciled  citizen  of 
the  State  of  California.  She  founds  her  claim  upon  the  statutes  of 
this  State,  and  is  now  here  invoking  the  jurisdiction  of  the  courts 
of  this  State.  It  is  a  question  of  California  law,  to  be  construed  in 
California  courts,  and  we  see  nothing  in  our  constitution  or  statutory 
law,  or  in  international  law,  to  have  prevented  Blythe  from  making  the 
plaintiff  his  daughter  in  every  sense  that  the  word  implies.  In  conclu- 
sion, we  hold  that  Blythe,  being  domiciled  in  the  State  of  California 
both  at  the  time  of  the  birth  of  plaintiff  and  at  the  time  he  performed 
the  acts  which  it  is  claimed  resulted  in  the  legitimation  of  plaintiff,  and 
California  law  authorizing  the  legitimation  of  I)astards  by  tlie  doing  of 
certain  acts,  it  follows  that  Florence  I'lytlic,  the  plaintiff,  at  all  times 
was  possessed  of  a  capacity  for  legitimation  under  section  230  of  tlie 
Civil  Code  of  this  State.* 

1  Tpon  an  examination  of  the  evidence,  the  learned  judge  decided  that  Rlvtlio  liail 
(lone  all  tliin<;s  roijuirod  by  §  230  to  Iff^itirnate  his  daughter.  1'atkrson  and  Sii,\ni'- 
STKIN,  .I.I.,  coniMirro<l.  .MrFAiti.ANi)  and  Drc  IIavkn,  .I.T.,  liold  that  the  acts  n'<|nirfMl 
for  legitimation  under  §  230  liad  not  taken  ])lacc,  l)ut  concurred  in  the  re.sult  on  tlie 
gronnrl  thiit  plaintiff  was  lieir  under  §  1.'187.  Bkatty,  C.  J.,  and  Haurison,  J.,  did 
not  sit.  —  Hi). 


136  EDDIE   V.    EDDIE.  [CHAP.  VI. 


EDDIE  V.   EDDIE. 
Supreme  Court  of  North  Dakota.    1899. 

[Reported  79  Northwestern  Reporter,  856.] 

ToTTNG,  J.^  This  is  a  contest  between  the  two  sets  of  children  of 
one  Henrick  Nickolai  Eddie,  deceased,  to  determine  the  right  of  suc- 
cession to  his  estate.  Eddie,  the  decedent,  died  in  Grand  Forks 
Count}'  October  9,  1896,  without  will,  and  possessed  of  considerable 
property,  both  personal  and  real,  situated  in  that  county.  Henrick 
Ferdinand  Eddie  aud  Axel  Eddie,  who  are  plaintiffs  herein,  are  the 
natural  children  of  decedent.  The  defendants  are  his  children  by  mar- 
riao-e,  and  are  legitimate.  The  entire  contest  is  as  to  the  right  of  these 
naUiral  children  to  share  in  the  estate  of  their  father  by  inheritance, 
under  the  laws  ot  this  State.   .  .   . 

The  undisputed  facts  which  are  pertinent  to  the  issues  are  these: 
Henrick  Nickolai  Eddie,  the  decedent,  was  born  in  the  kingdom  of 
Norway  in  1843,  near  Levanger,  where  he  resided  continuously  until 
1869,  when  he  came  to  the  United  States,  where  he  lived  thereafter  and 
up  to  the  time  of  his  death.  Prior  to  coming  to  this  country,  he 
cohabitated  with  one  Sarah  Rinnan,  who  also  lived  at  Levanger.  The 
plaintiffs  are  the  issue  of  this  intercourse  :  Henrick  Ferdinand  Eddie, 
born  in  1861,  and  Axel  Eddie,  born  in  1865.  Both  of  thete  children 
lived  with  their  mother  up  to  the  time  of  her  death,  which  occurred 
about  twenty  years  ago,  and  have  always  resided  in  Norway.  There 
is  no  claim  that  their  parents  were  ever  married.  After  coming  to  this 
country,  and  in  1871,  at  La  Crosse,  Wis.,  Henrick  Nickolai  VAdie,  the 
decedent,  married  Oleaana  Gorden.  The  defendants  are  the  issue  of 
that  marriage.  After  leaving  Norway,  in  1869,  decedent  never  saw  or 
communicated  with  the  plaintiffs  or  their  mother  in  any  way.  Neither 
did  he  ever  acknowledge  these  children  as  his  own  by  written  instru- 
ment. The  plaintiffs  base  their  right  to  inherit  upon  a  claim  that  they 
were  adopted  by  their  father,  and  thereby  became  legitimated,  and,  as 
a  result,  became  his  heirs  under  the  laws  of  this  State.  The  material 
facts  upon  which  the  claim  of  adoption  rests  are  found  in  the  seventh 
finding  of  fact  of  the  district  court,  which  is  as  follows  :  "That  during 
all  the  time  after  tlie  birth  of  each  of  said  plaintiffs,  and  up  to  the  date 
of  the  immigration  of  said  Henrick  Nickolai  Eddie  to  the  United 
States  of  America,  said  Henrick  Nickolai  Eddie  treated  each  of  these 
plaintiffs  as  if  he  were  a  legitimate  child  of  him,  said  Henrick  Nickolai 
Eddie  ;  that  during  said  time  he  furnished  support  and  maintenance 
to  each  of  said  children  and  to  their  said  mother;  that  during  said 
time  he  corrected  and  reproved  said  children  ;  that  during  said  time 
he  lived  a  portion  of  the  time  with  the  said  children  and  their  said 

1  Part  of  the  opinion  is  omitted.  —  Ed, 


SECT.  IV.]  EDDIE    I'.    EDDIE.  137 

mother  at  Leviinger,  aforesaid  ;  that  during  all  of  said  time  the  said 
Henrick  2sickolai  Eddie  publicly  acknowledged  each  of  said  children, 
Heurick  Ferdinand  and  Axel  Eddie,  as  his  own."  The  district  court, 
in  its  conclusions  of  law,  found  that  plaintiffs  were  adopted  by  decedent 
as  his  own  children,  by  his  acts,  prior  to  18(59,  and  that  they  were  his 
heirs  at  law,  and  as  such  entitled  to  participate  in  the  distribution 
of  his  estate.  It  will  be  noticed  that  all  of  the  acts  of  the  decedent 
\.-hich  it  is  contended  amount  to  an  adoption  of  plaintiffs  occurred  in 
rsorway,  when  he  and  plaintiffs  and  their  mother  were  all  residents  of 
that  kingdom.  There  is  nothing  in  the  record  to  show  what  the  law 
of  Norway  is,  or  that  there  is  any  legal  authority  in  that  country'  for 
the  legitimating  or  adoption  of  bastard  children.  Neither  is  it  at  all 
material,  for  appellants  do  not  claim  to  have  been  legitimated  and 
given  the  capacit}'  to  inherit  b\-  the  laws  of  their  own  country,  but  rest 
their  alleged  status  of  legitimated  children  and  claim  to  inheritable 
blood  solely  upon  the  laws  of  this  State,  where  their  father  resided  at 
his  death,  and  where  the  estate  is  situated.  It  is  contended  that  the 
acts  of  recognition  b}'  their  father  which  occurred  in  Norway  prior 
to  the  year  1869,  which  are  set  out  in  the  finding  of  fact  before  quoted, 
legitimized  and  made  them  heirs  under  section  2806,  Rev.  Codes, 
which  reads  as  follows  :  "  The  father  of  an  illegitimate  child  by  pub- 
licly acknowledging  it  as  his  own,  receiving  it  as  such  with  the  consent 
of  his  wife,  if  he  is  married,  into  his  family,  and  otherwise  treating  it 
as  if  it  was  a  legitimate  child,  thereby  adopts  it  as  such,  and  such  child 
is  thereupon  deemed  for  all  purposes  legitimate  from  the  time  of  its 
birth.  The  foregoing  provisions  of  tliis  chapter  do  not  apply  to  such 
an  adoption."  The  district  court  reached  the  conclusion  that  there 
had  been  an  adoption,  and  consequent  legitimation,  under  this  statute. 
Accepting  the  facts  found  by  that  court  as  true,  we  are  yet  not  able  to 
reach  the  same  result.  It  is  agreed  that  the  laws  of  this  State  regula- 
ting the  descent  and  distribution  of  propert}'  govern  this  estate. 
This  follows  necessarily  from  an  application  of  the  rule  that  personal 
property  descends  according  to  the  law  of  domicil  of  the  owner,  and 
real  estate  under  the  law  of  the  place  where  situated,  for  in  this  case 
both  the  real  and  personal  propertv,  as  well  as  the  domicil  of  the 
owner,  were  within  this  State.  Comity  between  States  has  not  gone 
to  the  extent  of  recognizing  the  right  of  one  State  to  designate  the 
persons  to  whom  realty  situate  in  another  State  shall  descend,  and 
doubtless  never  will.  Another  principle  which  is  as  universally  recog- 
nized is  that  the  laws  of  each  State  fix  the  status  of  the  persons 
domiciled  therein.  This  was  expressed  in  Ross  v.  Ross,  129  Mass. 
243,  as  follows:  "  It  is  a  general  principle  that  the  status  or  condi- 
tion of  a  person,  the  relation  in  which  he  .stands  to  another  person,  and 
by  which  he  is  qualified  or  made  capaljle  to  take  ceitain  rights  in  that 
other's  property,  is  fixed  by  the  law  of  the  domicil,  and  that  this 
status  and  capacity  are  to  be  recognized  and  ui)held  in  every  State 
so  far  as  they  are  not  inconsistent  with  its  own  laws  and  policy."     We 


138  EDDIE    V.    EDDIE.  [CHAP.  VI. 

may  also  sav  that  the  domicil  of  an  illegitimate  child  is  that  of   its 
mother  until'  it  acquires  one  for  itself,  and  that  these  claimants  were, 
therefore,  at  all  times  domiciled  in  the  kingdom  of  Norway.     It   is 
apparent  that  the  rights  of  claimants  are  determined  by  the  construc- 
tion to  be  given  to  section  2806,  Rev.  Codes,  upon  which  they  rely. 
Is  it  a  statute  of  descent  or  a  statute  fixing  status?     If  it  is  a  statute 
of  descent,  merely  descriptive  of  a  class  of  illegitimates  who  are  thereby 
authorized  to  inherit  property  situated  in  this  jurisdiction,  the  fact  that 
claimants  were  domiciled  beyond  the  confines  of  the  State,  and  in  a 
foreio-n  land,  will  deprive  them  of  no  rights  which  the  State  may  have 
given  to  them  in  the  estate  of  the  intestate.     But,  on  the  other  hand, 
if  it  is  construed  as  a  statute  of  adoption,  creating  for  those  domiciled 
within  the  State  a  status  of  legitimacy  between  the  illegitimate  and  its 
father,  in  all  things  like  the  adoption  of  another  child  save  in  the  pro- 
cedure, and  followed  by  the  same  legal  consequences,  botli  to   parent 
and  child,  then  there  can  be  no  pretence  that  the  acts  which  were  all 
done    without   the  jurisdiction,  and    in    a   foreign    State,  would   be  a 
compliance  with  the  section  quoted  so  as   to  constitute  an    adoption 
as  so  construed  ;    for  neither   father,   mother,  children,  nor   property 
were  in  the  State  or  territory  when  the  acts  of  adoption  are  said  to 
have  occurred.     Their  own  land  attached   to  their  status  the   stigma 
of  illeo-itimacy.     While  so  domiciled,  it  was  not  within  the  power  of 
another  State  to  remove  it.     But  this  absence  of  power  to  make  or 
alter  the  status  of  the  subjects  of  another  State  implies  no  restriction 
upon  the  right  of  the  State  to  control  the  descent  of  real  estate  within 
its  limits,  and  to  lend  the  aid  of  its  laws  to  convey  their  respective 
interests  therein  to  such  classes  of  persons  as  it  may  have  designated 
as  heirs,  regardless  of  where  they  may  be  domiciled,  or   the   status 
which  they°may  have.     Chapter  8  of  the  Civil  Code,  in  which  the 
section  of  the  statute  is  found  through  which  the  plaintiffs   claim  a 
right  to  inherit,  is  composed  of  ten  sections.     The  first  seven  sections 
provide  for  the  adoption,  by  any  adult  person,  of  minor  children  other 
than  his  or  her  own,  by  a  decree  of  the  district  court  of  the  county  of 
the  residence  of  the  adopting  parent.     The  eighth  fixes  the  status  of 
tlie  child  so   adopted  as  that  of  one  born    in  lawful   wedlock.     Tlie 
following  section  provides  that  the  decree  shall  deprive  its  natural  par- 
ents of  all  legal  rights  respecting  it,  and  frees  the  adopted  child  from 
the  obligations  of  obedience  and  maintenance  to  its  natural  parents. 
The  chapter  is   concluded    by  the    section   in   question,   which   is   as 
strictly  a  statute  of  adoption  as  those  preceding.     By  the  former,  one 
may  adopt  only  the  child  of  another,  and  then,  by  a  decree  of  court, 
entered  in  the  public  records.     By  the  latter  the  father  is  permitted  to 
adopt  his  own  child,  not  by  public  proceedings,  and  by  written  docu- 
ment containing  and  perpetuating  the  record  of  his  child's  disgrace, 
and  his  own  shame,  but  by  voluntarily  assuming  the  usual  relation  and 
duties  of  a  father  ;  or,  as  expressed  in  the  statute,  "  publicly  acknowl- 
edo-ing  it  as  his  own,  receiving  it  as  such  with  the  consent  of  his  wife, 


SECT.  IV.]  .SKOTTOWE    V.    FEliKANlJ.  139 

if  he  is  iiianied,  into  his  family,  and  otherwise  treating  it  as  if  it  were 
a  legitimate  child."  The  adoption  in  fact  is  made  an  adoption  in  law, 
and  the  statute  serves  the  same  purpose  as  the  decree,  "  and  such 
child  is  thereupon  deemed  for  all  purposes  legitimate  from  the  time  of 
its  birth."  In  short,  all  of  the  mutual  rights  and  duties  of  parent  and 
child  are  called  into  being,  placing  upon  the  father  the  legal  obligation 
of  care,  education,  and  support,  and  giving  to  him  the  custody  of  the 
child,  as  well  as  a  right  to  its  earnings  ;  while  the  child  so  adopted 
becomes  bound  to  perform  all  of  the  duties  of  a  legitimate  child.  The 
status  thus  created  is  that  of  a  child  adoi)ted  by  regular  procedure 
of  court.  Section  2802  of  this  chapter  by  its  language  expressly  limits 
the  right  of  adoption  by  application  to  the  district  court  to  inhabitants 
of  the  State.  While  it  is  true,  the  father  of  an  illegitimate  child  is  not 
required  to  pursue  the  same  steps  to  legally  adopt  his  own  child,  yet,  in 
view  of  the  fact  that  the  same  status  is  created,  and  the  same  mutual 
and  legal  obligations  between  the  adopting  parent  and  his  child  result, 
the  conclusion  is  irresistible  that  this  section  also  only  applies  to 
parents  who  are  domiciled  within  the  State  at  the  time  the  adoption  in 
fact  occurs.  This  view  is  in  accord  with  the  holding  of  the  Supreme 
Court  of  California,  where  this  same  statute  has  been  in  force  since 
1873.  See  Blythe  v.  Ayres,  96  Cal.  532.  One  of  the  legal  conse- 
quences resulting  from  the  status  so  created  is  the  right  to  inherit,  but 
this  right  does  not  arise  from  the  mere  act  of  adoption,  but  is 
elsewhere  expressly-  given  to  one  who  has  been  so  adopted.  ...  In 
this  case  both  the  petitioners  and  their  father  were  domiciled  in 
Norway  when  the  acts  of  adoption  are  said  to  have  occurred.  Such 
acts  did  not,  therefore,  affect  their  status  in  this  State.  The  petitioners 
were  not  adopted  under  the  laws  of  this  State,  and  are  therefore  not 
entitled  to  inherit  under  section  3744,  Rev.  Codes.  The  judgment  of 
the  district  court  is  therefore  reversed.     All  concur. 


SKOTTOWE   V.    FERRAND. 

Court  of  Cassation,  Franck.     1857. 

[Re jiorted  Journal  du  Palais,  IS.'iS,  lOtl.] 

The  Court.  The  judgment  from  which  api>eal  was  taken  recited 
tiiat  Thomas  Skottove  [Skottowe]  was  born  an  Englishman,  was  never 
naturalized  in  France,  and  has  always  preserved  his  quality  as  English- 
uiuii ;  but  it  also  recited  that  said  Skottove  lived  in  France  for  a  great 
iMitnber  of  3ears,  married  there  twice  successively,  and  had  there  his 
doinicil  after  his  second  marriag(!  with  Sylviiic  INTorland,  a  Frcncii- 
woman,  which  was  celebrated  :it  l;i  VcvX/-  Si.  Auliiii,  October  2<).  IHoS. 
After  this  marriage  ho  recognized  two  n;itunil  children  he  li:id  by 
liL'r,  in   France,  in   18;j1   and   18.02. 


140  SKOTTOWE  V.    FEKKAND.  [CHAP.  VI. 

English  legislation  and  decisions  (supposing  them  opposed  to  the 
legitimation  of  natural  children  by  the  subsequent  marriage  of  the 
parents)  in  case  of  a  marriage  celebrated  in  France,  when  the  father 
alone  is  English,  domiciled  in  France,  the  mother  French  and  the 
children  born  in  France,  could  not  deprive  this  woman  of  the  right 
(which  she  derived  from  tlie  French  law,  the  law  of  the  matrimonial 
domicil  to  which  the  intending  spouses  are  supposed  to  have  wished 
to  submit  themselves)  to  legitimate  her  children  by  her  marriage  witli 
their  father,  or  deprive  the  children  of  the  benefit  of  this  legitimation. 

This  tacit  agreement  of  the  future  spouses  at  the  time  when  they 
were  to  be  united  in  marriage  should  protluce,  in  France,  complete 
aud  indivisible  effects  as  well  concerning  the  father  as  concerning  the 
mother  and  children  ;  otherwise  it  would  not  be  a  true  legitimation. 
The  good  faith  of  the  mother  would  be  defrauded,  as  well  as  the  hopes 
which,  in  consenting  to  the  marriage,  she  had  reposed  in  her  country's 
laws,  for  herself  as  well  as  for  her  children  ;  who,  born  in  France, 
may,  in  spite  of  the  recognition  by  their  father  in  the  marriage  con- 
tract,  claim  at  their  majority  the  quality  of  French  citizens,  according 
to  Article  9  of  the  Code  Napoleon. 

These  considerations  of  fact  and  law  have  all  the  greater  force  and 
power  because,  —  according  to  its  object  and  its  results,  which  are 
to  repair  a  fault  committed  against  social  order,  for  the  benefit  of  the 
natural  child  who  was  the  innocent  victim  of  it,  to  create  for  this  child 
a  family  that  he  did  not  have  before,  and  to  raise  him  to  the  class 
and  give  him  the  rights  of  legitimate  child, — legitimation  by  subse- 
quent marriage  of  the  parents,  like  marriage  itself,  is  in  France  a 
question  of  public  order. 

It  follows  that  in  deciding  that  Skottove  has  not  conferred  upon 
his  two  natural  children,  born  in  France  in  1851  and  1852,  by  his 
subsequent  marriage  with  their  mother  celebrated  in  France  October 
26,  1853,  the  benefit  of  legitimation,  and  that  accordingly  the  gift 
inter  vivos  made  by  him  to  Mrs.  Farrand,  July  4,  1836,  was  not  re- 
voked and  should  be  executed,  the  judgment  from  which  appeal  was 
taken  expressly  violates  Articles  331  and  960  of  the  Code  Napoleon. 

Judgment  set  aside .^ 

1  Ace.  Joly  V.  Perkins  (Rouen,  1887),  14  Clunet,  183.  See  Skottowe  v.  Young, 
L.  R.  11  Eq.  474.  — Ed. 


SECT.  IV.]  ANONYMOUS.  l-il 


ANONYMOUS. 

Court  of  Appeal,  Athens.     1893. 
[Reported  21  Clunet,  592.] 

The  Court.  The  recoguition  of  a  natural  child  by  a  Greek  in 
foreign  parts  is  not  governed  by  the  laws  of  the  countr}'  where  the 
recognition  takes  place,  but  by  the  law  of  the  father's  country.  The 
application  of  the  French  law,  made  in  the  court  below  according  to 
Article  4  of  the  Greek  Civil  Code  because  the  mother  was  French,  is 
not  in  conformity  with  law  ;  for  in  the  recognition  it  is  the  father  who 
contracts  the  relation  from  which  are  deduced  all  the  rights  of  the 
recognized  child.  The  validity  of  the  recognition  made  by  a  Greek 
in  a  foreign  country  should  be  judged  in  the  same  way  as  if  the  act 
had  been  done  in  Greece  ;  in  short,  according  to  the  Greek  Civil  Code, 
Article  4  :  ••  Marriage  and  the  relations  between  parents  and  children 
are  ruled  for  a  Greek  residing  in  a  foreign  country  by  the  Hellenic 
law."  This  solution  is  also  in  conformity  with  the  general  rule  that 
paternity  and  filiation  are  governed  by  the  statute  personal  (or  by  the 
principle  of  nationality)  of  the  father;  this  rule  is  accepted  by  all 
nations  in  the  world.  The  principles  we  have  laid  down  are  professed 
by  very  eminent  authors  (Foelix,  Droit  intern.  I.  p.  79  ;  Pasquale 
Fiore,  Droit  international  prive,  p.  239 ;  von  Bar,  Internationales 
Privatrecht,  II.  p.   183). 

If  recognition  were  not  an  institution  existing  in  Greece,  a  Greek 
could  not  make  a  recognition  even  in  a  foreign  country,  since,  accord- 
ing to  Article  8  of  the  Greek  Civil  Code,  the  Greek  courts  cannot  take 
account  of  institutions  which  are  not  admitted  by  Greek  law.  Accord- 
ing to  this  solution  are  the  PLnglish  decisions,  which  provide  that  an 
Englishman  cannot  recognize  a  natural  child  even  in  a  foreign  country. 
whUst  a  foreigner  may  recognize  a  natural  child  in  England  provided 
he  can  do  it  by  the  law.  of  his  country.  Recognition  is  not  met  with 
in  the  Roman  law,  but  it  is  admitted  in  principle  by  the  modern  Greek 
law  (Greek  Civil  Code,  Art.  65).  The  proof  of  foreign  laws,  when 
they  are  denied,  is  obligatory  upon  the  court ;  consequently  the  court 
of  first  instance,  in  deciding^  that  it  might  order  the  proof  of  foreign 
law,  if  it  deemed  it  necessary,  but  that  it  was  not  bound  to  do  so, 
falsely  interpreted  the  law  of  procedure. 

The  recognized  child  is  French,  since  before  the  recognition  she 
married  a  Frenchman:  the  French  nationality  thus  acquired  cannot 
be  lost  by  effect  of  the  recognition  which  without  the  marriage  would 
have  made  the  child  Greek. 

The  recognition  of  the  plaintiff  is  to  be  regarded  legal  if  the  act  of 
recognition°which  she  alleges  was  done  in  conformity  with  the  French 
law  at  Toulon.  It  is  true  that  the  validity  of  the  recognition  and  the 
capacity  of  the  father  are  judged  by  the  Hellenic  law  ;  but  the  external 


142  ANONYMOUS.  [cHAP.  VI. 

forms  of  recognition  are  governed  by  tlie  law  of  the  country  where  iho 
recognition  takes  place  (Greek  Civil  Code,  Art.  60,  where  is  found 
the  special  rule  that  acts  of  civil  status  recorded  in  a  foreign  country 
by  competent  magistrates  according  to  the  forms  in  use  in  that  country 
may  be  effectually  proved). 

For  the  rights  of  inheritance  of  the  recognized  child  it  is  necessary 
to  turn  to  the  law  which  regulates  intestate  succession  to  a  Greek 
citizen  ;  now  according  to  Article  5  of  the  Greek  Civil  Code,  testa- 
mentary or  intestate  succession  is  regulated  by  the  law  of  the  nation 
of  the  deceased,  and  consequently  we  must  apply  Greek  law  as  well 
for  the  capacity  of  the  heir  as  for  the  extent  of  his  right.  The  Hel- 
lenic law  does  not  regulate  the  rights  of  a  recognized  child  to  his 
fathers  property ; '  one  cannot  apply  the  provisions  as  to  legitimated 
children,  because  legitimation  has  for  its  purpose  to  make  a  legiti- 
mate child  of  a  natural  child,  while  recognition  simply  constitutes  a 
vinculum  Juris  between  father  and  child.  Besides,  if  recognition  gave 
the  recognized  child  all  the  rights  of  a  legitimate  child,  the  provisions 
for  legitimation  would  be  superfluous.  All  modern  legislation  govern- 
ing the  rights  of  recognized  children  has  given  them  not  the  same 
rights  of  succession  as  those  of  legitimate  or  legitimated  children,  but 
narrower  ones.  For  this  reason  the  rights  of  succession  of  recognized 
children  should  be  regulated  according  to  the  dispositions  of  the  Roman 
and  Byzantine  law  relative  to  liberi  naturales  {ex  concuhina^  in  the 
strict  sense  of  the  word).  According  to  the  Novels,  18  cap.  V.  and 
89  cap.  XII.,  infants  born  of  a  concubine  succeed  in  default  of  legiti- 
mate children,  either  with  their  mother  or  alone  to  the  sixth  part  of 
their  father's  goods.  These  provisions  have  not  been  in  force  since 
Leo,  Emperor  of  Byzantium,  abrogated  concubinage  as  a  legal  union  ; 
but  though  the  provisions  are  abrogated  for  children  born  of  a  con- 
cubine, they  remain  in  full  force  for  recognized  children,  since  the 
modern  legislator  in  1856  had  the  intention  (which  was  not,  to  be 
sure,  expressly  formulated  in  the  law)  of  applying  the  provisions  to 
natural  children.-^ 

1  Ace.  16  Clunet,  676  (Marseilles,  26  Jan.  '89).  —  Ed. 


SECT.  L]  DUNCAN   V.   LAWSON.  14t 


CHAPTER   VII. 

RIGHTS   OF   PROPERTY. 


SECTION   I. 

THE    NATURE    OF    PROPERTY. 


DUNCAN  V.  LAWSON. 

Chancery  Division.     1889. 

[Reported  41   Chanceri/  Division,  394.] 

Kay,  J.^  The  opinion  of  tlie  court  is  required  b}-  the  Court  of  Ses- 
sion in  Scotland,  which  has  approved  and  remitted  to  this  court  a  case 
under  the  Act  22  &  23  Vict.  c.  63.  Upon  several  of  the  matters  sub- 
mitted no  doubt  can  be  entertained.  One  question  of  considerable 
interest  has  been  argued. 

The  question  arises  under  a  Scotch  will  —  more  properly  a  trust  dis- 
position and  settlement  —  of  David  Gavin  Hewit.  He  was  a  domiciled 
Scotchman,  and  possessed  freehold  and  leasehold  estate  in  England. 
He  gave  all  his  real  and  personal  property  to  trustees,  with  power  to 
convert,  and  directed  them  to  pay  certain  pecuniary  legacies  to  chari- 
ities  in  England  and  Scotland.  And  he  (lis[)osed  of  the  ultimate  resi- 
due of  his  trust  estate,  on  failure  of  his  issue,  among  certain  specified 
charities. 

The  validity  of  these  gifts,  so  far  as  they  are  payable  out  of  the  pro- 
ceeds of  English  freehold  or  leasehold  property,  must  dei)end  on  the 
lex  loci  ret  sitm,  which  in  England  renders  charital)le  gifts  by  will  of 
real  or  leasehold  property  void.  The  contest  arises  upon  the  question 
who  are  to  take  the  English  property  which  would  have  gone  to  satisfy 
these  bequests.  The  pecuniary  legacies  in  an  English  will  so  framed 
would,  so  far  as  they  failed,  fall  into  and  increase  the  residue.  The 
gifts  of  residue,  so  f'ar  as  they  failed,  would  be  undisposed  of  and  de- 
volve as  upon  an  intestacy.  This,  as  all  the  residue  is  divided  among 
charities,  would  not  alter  the  quantity  of  property  undisposed  of. 

There  is  no  doubt  as  to  the  devolution  of  the  English  freeholds  so 
ftir  as  undisposed  of  l)y  the  will.  Tliese,  or  llie  proceeds  of  any  con- 
verted under  the  will,  would  descend  as  real  estate,  and  would  belong 

1  Till!  ()])iiiii)ii  only  is  given. —  Ed. 


144  DUNCAN   V.   LAWSON.  [CHAP.  VII. 

to  the  testator's  heir-at-law  at  the  time  of  his  death,  assuming  that  the 
testator  had  acquired  them  as  a  purchaser  and  not  by  inheritance.  See 
3  &  4  Will.  IV.  c.  106. 

The  question  which  has  been  argued  is  whether  the  next  of  kin  of 
the  testator  according  to  English  or  Scotch  law  are  entitled  to  the  un- 
disposed of  leaseholds  or  the  proceeds  thereof.     Mobilia  sequuntur  per- 
sonam ;  and  the  law  of  the  domicil  undoubtedly  regulates  succession 
to  movable   property  ;  but  the  reason  for  this  is  that  movables  have 
no  locality  in  law.     It  is  argued  that  the  leaseholds  undisposed  of,  al- 
though immobilia,  belong  to  the  executor,  who  would  be  bound  to  deal 
with  the  beneficial  interest  in  them  as  with  other  undisposed  of  personal 
estate,  treating  them  as  personal  property  by  the  lex  loci,  and  there- 
fore dealing  with  the  beneficial  interest  in  mobilia  and  these  immobilia 
in  the  same  way  ;  and  that  accordingly  the  beneficial  interest  must  de- 
volve according  to  the  law  of  the  domicil.    But  the  lex  loci  governs  the 
devolution  of  immobilia  in  case  of  intestacy,  just  as  it  does  of  freehold 
property.     There  is  no  possibility  of  doubt  that,  if  the  Scotch  heir  and 
the  English  heir  were  different  persons,  the  Enghsh  heir  and  not  the 
Scotch  heir  would  take  the  undisposed  of  freeholds  in  England.     The 
executor  is  merely  the  hand  to  effect  the  distribution  of  personal  estate. 
As  to  the  persons  entitled  under  the  distribution  to  succeed  to  the  un- 
disposed of  leaseholds,  the  lex  loci  must  govern,  or  it  would  practically 
have  no  effect  at  all.     The  matter  is  more  clear  if  you  take  the  case  of 
an  absolute  intestacy,  where  no  executor  has  been  appointed.     As  to 
English  leaseholds,  the  Probate  Court  in  England  would  in  that  case  be 
called  on  to  appoint  an  administrator.     No  doubt  such  administrator 
would  be  chosen  from  the  next  of  kin  according  to  English  law,  and  it 
would  be  his  duty,  subject  to  the  satisfaction  of  the  testator's  debts, 
probate  duty,  and  the  like,  to  distribute  the  leaseholds  among  the  per- 
sons entitled.     At  this  stage  of  the  proceeding  the  lex  loci  must  deter- 
mine, independently  of  the  testator's  domicil,  to  whom  such  distribution 
must  be  made. 

Such  authority  as  there  is  upon  the  subject  is  in  favor  of  this  view. 
In  Ereke  v.  Lord  Carbery,  Law  Rep.  16  Eq.  461,  466,  where  an  Irish 
testator  bequeathed,  amongst  other  property,  a  leasehold  house  in 
London  upon  trust  to  accumulate  the  rents,  Lord  Selborue  held  that 
the  Thellusson  Act  applied,  although  it  is  not  operative  in  Ireland.^  In 
answer  to  the  argument  that,  according  to  the  lex  loci,  leaseholds  in 
London  are  personal  estate,  and  therefore  come  within  the  rule  mobilia 
sequuntur  personam,  Lord  Selborue  said:  "When  'mobilia'  are  in 
places  other  than  that  of  the  person  to  whom  they  belong,  their  acci- 
dental situs  is  disregarded,  and  they  are  held  to  go  with  the  person. 
But  land,  whether  held  for  a  chattel  interest  or  held  for  a  freehold  in- 
terest, is  in  nature,  as  a  matter  of  fact,  immovable  and  not  movable. 
The  doctrine  is  inapphcable  to  it." 

^   Contra,  Despard  v.  Churcliill.  ^^  N  Y.  192.  —Ed. 


8ECT.  I.] 


MCCOLLUM    V.    SMITH.  ^^^ 


In  the  Goods  of  Gentili,  I.  R.  9  Eq.  541,  a  mavried  woman  domi- 
ciled in  Italy  died  there  possessed  of  leaseholds  in  Ireland  Her  hus- 
band, who  survived  her,  was  only  entitled  by  ^^^^^^^^l 
interest  in  these  leaseholds,  but  by  the  law  of  Ireland,  the  /f^/^^''^»^ 
was  entitled  absolutely.  It  was  held  that  the  grant  of  admimstra ton 
houd  be  unqualified.  In  the  very  lucid  and  able  judgmen  u.  ha 
case  Freke  r  Lord  Carbery  is  referred  to  as  a  distmct  aulhonty  -  tha 
the  succession  to  chattels  real  depended  on  the  lex  /oc.,'  which  the 
learned  judge  states  to  be  his  own  opinion  also. 

H  s  Lordship  then  answered  in  detail  the  several  questions  pro- 
pounded  for  thl  opinion  of  the  court,  and  expressed  the  opinion  that 
Ti^ersons  entitled  to  take  the  sums  which  would  have  go-  to^a.i.0 
the  charitable  bequests,  so  far  as  they  were  payable  ou  ot  Lngli.h 
f^ehold  and  leasehold  estates,  if  such  bequests  had  not  been  invah^ 
were,  as  to  the  leasehold  property  or  the  proceeds  ^^-^f '  ^^^  .  ;^'g7;^ 
entitled  to  the  testator's  personal  estate  according  to  the  English  btat 
ute  of  Distributions.^ 


McCOLLUM  V.  SMITH. 
Stjpkeme  Court  of  Tennessee.      1838. 

[Reported  Meujs,  342.] 

Green   J  ^     The  complainants,  Zilla  and  Sally,  are  the  children  of 
the  defendant,  bv  his  former  wife  Tamsey.     Tamsey  was  the  daughter 
of  John  Dodd,  of  Louisiana,  who  died  in  that  State,  possessed  of  con- 
lideille  estate,  about  the  first  of  December,  1815.     Mrs   Smith  and 
her  husband,  the  defendant,  lived  in  Tennessee,  where  she  died  in  leb- 
ruarv,  1816,  before  any  measures  were  taken  to  obtain  her  share  of  her 
father's  estate.     Her  only  children  surviviug  her  were  the  complainant, 
Zilla,  wife  of  McCollum,  and  Sally,  wife  of  Reid,  and  ^^^llia.n  ^^Isbury, 
a  son  bv  a  former  husband.    William  Salsbury  died  m  ISoyember,    h2G, 
without  lawful  issue,  leaving  his  sisters,  Zilla  and  Sally,  his  only  heirs 
and  distributees.     The  defendant.  Smith,  obtained  his  wife  s  portion  of 
her  father's  estate  in  Louisiana,  nnd  was  guardian  o    William  Salsbui, 
whose  estate  went  into  his  hands.    This  bill  is  brought  by  his  daughteis 
and  their  husbands  for  an  account  of  each  of  these  funds       I  he  princi- 
pal question  in  this  cause  is,  whether  negroes  are  to  be  regarded  in 
Louisiana  as  real  estate  or  personal.     For  it  is  not  disputed  on  either 
side,  but  that  if  personal,  the  law  of  Mrs.  Smith's  domici  will  govern; 
and  if  real,  the  law  of  the  place  where  it  was  situated  will  control  the 
succession.     Story,  Conf.  L.,  §§  481,  483. 

By  the  law  of  Louisiana,  real  estate  and  immovable  things  aie  con- 

1  Ace.  Monteith  v.  Mouteith,  9  Sess.  CiVS.  (4tl.  S.Ties)  982. -Ei>. 

2  I'art  of  the  opinion  only  is  givon.  —  Ki>. 
VOL.  II.  —   10 


146  McCOLLUM    V.    SMITH.  [CHAP.  YII. 

vertible  terms.  Dig.  1808,  b.  2,  c.  2,  art.  13.  And  that  law,  art.  19, 
contains  the  following  provision  in  relation  to  slaves :  "  Slaves  in  this 
territor}'  are  considered  immovable  by  the  operation  of  law,  on  account 
of  their  value  and  utility  for  the  cultivation  of  the  lands,  and  therefore 
they  may  be  mortgaged."  The  chapter  from  which  this  extract  is  made 
treats  onh'  of  immovable  things,  enumerating  what  are  such  and  in 
what  sense  ;  whether  by  their  nature,  or  by  operation,  or  destination  of 
law  ;  and  commences  with  the  words,  "  Real  estate  or  immovable  things 
are,"  etc.,  thereb}'  substituting  the  terms,  •'  immovable  things,"  for 
'"  real  .estate."  Story's  Conf  L.,  §  447,  says,  "That  in  addition  to 
those  things  which  may  be  deemed  universally  to  partake  of  the  nature 
of  immovables,  or,  as  the  common  law  phrase  is,  to  savor  of  the  realty, 
all  other  things,  though  movable  in  their  nature,  which  by  the  local  law 
are  deemed  immovables,  are  in  like  manner  governed  by  the  local  law. 
For  ever^'  nation,  having  authority  to  prescribe  rules  for  the  disposition 
and  arrangement  of  all  property  within  its  own  territory-,  may  impress 
upon  it  an}'  character  which  it  shall  choose,  and  no  other  nation  can 
impugn  or  vary  that  character."  If  these  principles  be  correct,  the}' 
settle  the  question  ;  for  Louisiana  has  said,  by  its  law,  that  slaves  are 
immovable,  and  having  a  right  to  impress  upon  them  any  character  it 
may  choose,  which  Tennessee  has  no  right  to  impugn  or  vary,  it  follows 
that  the  law  of  Louisiana  must  govern  the  succession. 

It  is  earnestly  argued  that  this  language  of  Judge  Story  must  be  re- 
stricted in  its  meaning  to  such  things,  movable  in  their  nature,  as  are 
by  law  attached  to  the  land,  and  are  thus  made  to  savor  of  the  realty. 
This  is  plainly  a  misconstruction  of  the  author ;  for  he  says,  expressly, 
that  in  addition  to  the  things  that  are  universally  considered  to  savor 
of  the  realty,  "  all  other  things,  though  movable  in  their  nature, 
which  by  the  local  law  are  deemed  immovables,  are  in  like  manner 
governed  by  the  local  law  ;  "  thus  plainly  intending  to  assert  the  power 
of  a  nation  to  impress  any  description  of  property  with  the  character  of 
"  immovable,"  whether  connected  with  land  or  not. 

But  it  is  insisted  that  no  State  has  a  right  to  do  this  :  and  thus  give 
to  property,  movable  in  its  nature,  a  destination  different  from  that 
which  by  the  law  of  nations  would  be  given  to  it  were  there  no  such 
local  law.  If  this  argument  be  well  founded,  the  power  by  law  to 
attach  movable  property  to  the  freehold,  and  thus  constitute  a  part  of 
it,  would  be  equally  beyond  the  competency  of  a  State.  Is  it  not  as 
easy  to  declare,  in  an  act  of  assembly,  that  horses  for  the  plow  shall 
constitute  part  of  the  freehold,  and  thus  make  them  immovable,  as  to 
announce  simply  that  horses  shall  be  immovable  property?  It  is  cer- 
tainly difficult  to  perceive  upon  what  principle  the  competency  to  enact 
the  former  provision  can  be  maintained,  while  the  power  to  make  the 
latter  is  denied.  And  yet  the  power  to  attach,  by  law,  things  in  their 
nature  movable  to  the  freehold,  and  thus  make  them  immovable,  is  not 
denied  in  the  argument ;  and,  indeed,  could  not  be,  for  the  common  law, 
as  well  as  the  civil  law,  recognizes  some  things  movable  in  their  nature 


SECT.  I.]  MCCOLLUM   V.    SMITH.  147 

as  part  of  the  freehold.  This  right  to  impress  upon  movable  things  the 
character  of  immovables  does  not  depend  upon  their  relation  to  tiie 
freehold,  but  results  from  the  power  inherent  in  ever}'  nation  "  to  pre- 
scribe rules  for  the  disposition  and  arrangement  of  all  property  within 
its  own  territor}'."  When  this  shall  be  done  the  law  applical>le  to  im- 
movables governs  the  disposition  wliich  uiust  bo  made  of  such  properly. 

It  is  insisted  that  the  law  of  Louisiana  referred  to  was  not  made  with 
a  view  to  the  succession,  but  that,  as  only  immox  al)les  are  there  subject 
to  mortgage,  slaves,  on  account  of  their  value,  were  impressed  with  the 
character  of  immovable  with  the  view  only  of  making  it  lawful  to  mort- 
gage them.  This  is  evidently  a  misconstruetiou  of  the  law.  It  is  true 
tiiat,  after  announcing  that  slaves  are  immovable  property,  it  is  added 
in  the  digest  of  1808,  "and  therefore  diey  may  be  mortgaged."  But 
this  is  stated  as  a  mere  consequence,  or  incident,  resulting  from  the 
character  with  which  the  property  had  been  impressed  by  law.  The 
chapter  is  not  treating  of  mortgage  or  securities,  but  of  tlie  character  of 
property',  defining  what  things  are  immovable  in  contradistinction  to 
movable  things.  To  put  it  be^'ond  doubt  that  such  is  the  true  con- 
struction of  this  article,  it  will  be  perceived  by  i-eference  to  the  Civil 
Code  of  Louisiana  of  1825,  b.  2,  tit.  1,  c.  2,  art.  461,  that  the  words 
"and  therefore  thev  may  be  mortgaged,"  are  omitted  altogether.  The 
language  of  that  article  is:  "  Slaves,  though  movable  by  their  nature, 
are  considered  as  immovables  by  operation  of  law."  Thus  we  have  a 
legislative  construction  of  the  article  in  question,  removing  all  doubt. 

These  principles  having  been  established,  let  us  appl}'  them  to  the 
case  under  consideration.  We  have  seen  that  John  Dodd  died  in 
Louisiana  in  1815.  His  daughter,  Tamsej',  wife  of  the  defendant 
Smith,  him  surviving,  then  resided  in  Tennessee,  where  she  died  in 
1816.  In  relation  to  immovable  propertv,  the  descent  and  heirship  is 
exclusively  governed  by  the  law  of  the  countr}-  within  wliich  it  is  actu- 
ally situate.  "  No  person  can  take  except  those  who  are  recognized  as 
legitimate  heirs  by  the  laws  of  that  coinitrv  ;  and  they  take  in  the  pro- 
portions and  order  which  these  laws  prescril)e."  "  This,"  says  Judge 
.Story,  "is  the  indisputable  doctrine  of  the  common  law."  Conf.  L., 
§  483.  By  the  law  of  Louisiana,  Dig.  Civ.  Code,  b.  3,  tit.  1,  c.  2, 
§  2.  art.  27,  p.  150,  when  a  man  dies  all  his  legitimate  cliildren  '"par- 
ticipate to  Iiis  succession  by  equal  siiares." 

Jolin  Dodd  had  five  children,  of  whom  Mrs.  Smitii  was  one,  so  tiiat 
she  became  entitled  to  one  fifth  of  all  her  father's  estate.  Tliis  vested 
in  her  as  j)araphernal  property  ;  and  as  the  law  of  Louisiana  governs,  as 
to  tiie  land  and  negroes,  lieint,'  immovables,  that  portiou  of  the  estate 
was  held  by  her  independently  of  her  husband,  of  which  siie  had  the 
administration  and  enjoyment.  Civil  Code  La.  334.  This  property 
remained  undisposed  of  and  undivided,  until  after  the  death  of  Mrs. 
Smith  ill  1816.  Upon  her  death,  by  the  law  of  Louisiana,  the  succes- 
sion to  all  her  property  in  that  State  is  participated  by  lier  cliildren. 
But  as   that  law  governs  only  as  to  the   immovable,  Story,  Conf.    L., 


148  MESSIMY   V.   THE    REGISTRY.  [CHAP.  Yll. 

§  483,  the  defendant,  her  husband,  as  administrator  of  her  estate  in 
Tennessee,  is  entitled  to  her  movable  effects ;  and  is  not  bound  to 
account  for  them  to  her  children.     Story,  Conf.  L.,  §  481.^ 


V^       C      ■  MESSIMY  V.  THE  REGISTRY. 

^  Court  of  Cassation,  France.    1887. 

[Reported  Pandectes  Fran^aises,  1887  (6th  Part),  12.] 

By  the  terms  of  a  deed  executed  before  Maitre  Bagiensk}-,  notary  at 
St.  Petersburg,  on  October  10,  1881,  certain  Russians  after  making  the 
declarations  required  by  the  appendix  to  Article  7  for  tlie  government 
of  mines  with  a  view  of  obtaining  the  concession  of  certain  petroleum- 
bearing  lands  in  the  Province  of  Bakou,  formed  under  the  name  of 
"  The  Naphtha  Company  of  the  Caucasus,"  a  company  to  take  the  pos- 
session, usufruct,  and  disposition  of  the  lands  conceded,  for  the  purpose 
of  developing  petroleum  wells,  selling  the  products,  and  acquiring  the 
usufruct  or  the  title,  by  purchase,  lease,  or  governmental  concession, 
of  other  petroleum-bearing  lands. 

By  a  proces-verbal  of  November  29,  1881,  at  Lyons,  recorded  with 
the  records  of  Maitre  Messimy,  notary,  on  December  10  following,  an 
anonymous  joint-stock  association,  under  the  title  of  "  Company  for 
the  Production  of  Naphtha  and  Petroleum  in  the  Caucasus,"  was  formed. 
This  company  by  votes  of  November  6,  1881,  recorded  with  Maitre 
Messimy,  received  as  assets,  1st,  from  the  Naphtha  Company  of  the 
Caucasus,  the  concession  of  petroleum-bearing  lands  in  the  Province  of 
Bakou,  the  property  of  that  company  ;  2d,  from  one  Himof,  the  ex- 
clusive right  to  develop  for  thirty  years  certain  petroleum-bearing  lands 
near  Bog-Boga. 

In  consideration  of  these  conveyances,  the  Company  for  the  Produc- 
tion of  Naphtha  and  Petroleum  in  the  Caucasus  assigned  to  the  Naph- 
tha Company  of  the  Caucasus  6311  shares,  fully  paid,  of  500  francs 
each,  and  paid  3,155,500  francs  in  cash.  For  the  same  consideration 
Himof  received  689  shares  and  344,500  francs  in  cash. 

After  the  registration  of  the  articles  of  association  of  the  French 
company  there  was  imposed,  in  addition  to  the  duty  levied  on  the 
twenty-five  million  capital  of  the  company,  a  duty  of  two  per  cent,  as  on 
a  transfer  of  movables,  on  the  total  amount  of  3,500,000  francs  paid 
to  the  Naphtha  Company  of  the  Caucasus  and  to  Himof,  representing 
their  conveyances.-  .  .  .  Maitre  Messimy  contests  the  legality  of  this 
assessment,  on  the  ground,  1st,  that  the  money  value  of  the  convey- 
ances from  the  Naphtha  Company  of  the  Caucasus  is  not  subject  to 

1  Ace.  Ex  parte  Rucker,  3  Dea.  &  Ch.  704.  But  see  ^Villiamson  ■;;.  Smart,  C.  &  N. 
146.  —  Ed. 

2  Only  so  much  of  the  case  as  deals  with  this  duty  is  given.  — Ed. 


SECT.  I.]  MESSIMY   V.   THE   REGISTRY.  l-i9 

the  duty  due  on  sale  of  movables  (two  per  cent),  but  to  the  duty  of  one- 
teuth  of  one  per  ceut,  the  thing  conveyed  being  an  immovable.   .  .   . 

The  Tribunal  of  Lvous  gave  the  following  judgment:   "The  ques- 
tion is,  to  determine  \he  nature  of  the  duty,  and  for  that  purpose,  the 
movable  or  immovable  nature  of  the  thing  conveyed.     The  provisions 
bv  which  the  legislature  indicates  what  goods  should  be  regarded  as 
movables  and  what  as  immovables  are  real  laws.     French  reallaws 
aovern  exclusively  things  situated  in  French  territory,  whoever  be  the 
owners,  and  have  no  application  to  things  situated  outside  the  terri- 
tory.    This  principle  shows  that  when  Article  4  of  the  law  of  August 
•>3   1871,  desicrnates  foreign  movable  securities  as  submitted  to  a  tax,  it 
desio-uates  not  movable  securities  situated  abroad  and  considered  mov- 
ables in  France,  but  foreign  securities  which  are  movables  according 
to  the  statute  which  governs  them.     If  the  transfer  by  onerous  title,  by 
the  concessionary  of  a  mine,  of  all  his  rights  in  the  concession  is  the 
transfer  of  a  right  to  immovables,  when  the  mine  is  situated  in  t  rench 
ten-itory,  it  is  a  result  of  the  juridical  nature  given  to  mines  by  Article 
8  of  the  law  of  April  21,  1810,  which  is  a  real  statute,  without  apphca- 
tion  outside   the  territory.     The   conveyance   made  by   the   Naphtha 
Company  of  the  Caucasus  to  the  Company  for  the  Production  consists 
of  the  concession  of  petroleum-bearing  lands  situated  m  the  Russian 
Empire,  a  concession  obtained  from  the  Russian  government  on  the 
basis  of  declarations  made  by  representatives  of  the  Company,  in  con- 
formity with  Article  7  of  the  Regulations  for  Mines  ;  the  movable  or 
immovable  character  is  therefore  determined  by  the  Russian  law  and 
not  by  the  French.     The  concession  of  petroleum-bearing  lands  of  the 
Caucasus  is  governed  by  the  Russian  law  of  February  1,  1872,  so  far 
as  the  determination  of  the  rights  of  the  concessionaries  is  concerned. 
By  the  terms  of  Articles  7,  20,  and  21  of  tliis  law  the  petroleum-bearing 
lands  are  conceded  for  the  development  of  the  wells,  and  the  conces- 
sionaries acquire  the  right  of  using  while  the  State  retains  ownership 
in  the  lands.     This  right  is  a  movable  right,  and  creates  a  movable 
security  for  the  benefit  of  the  concessionary.     The  foregoing  applies 
also  to  the  conveyance  of  Himof,  all  the  more  that  the  conveyance 
expressly  consists"  only  of  the  exclusive  right  to  develop  for  thirty 
years  certain  petroleum-bearing  land.     Article  4  of  the  law  of  August 
23     1871,   §  2,  subjects  to  the  proportional  duty  transfers,   whether 
aratuitous  or  for  value,  when  they  take  effect  in  France,  of  foreign 
puljlic  funds,  shares,  obligations,  interests  in  partnersliii)s,  credits,  and 
generally  of  all  foreign  securities  of  whatsoever  nature.    The  law  makes 
no  distinction  between  corporeal  and  incorporeal  movables  ;   it  is  not 
confined  to    movables    possessed   by  foreigners  domiciled  in  France, 
whether  with  or  without  authorization."   .   .  . 

An  appeal  was  taken  from  this  judgment  to  the  court  of  Cassation 
by  Maitre  Messimy.   .  .   . 

The  Court.  .   .' .  Immovables  are  governed  by  the  law  of  the  coun- 
try in  which  they  are  situated.     The  question  of  knowing  whether  cer- 


150  CLARK    V.    GRAHAM.  [CHAP.  VII. 

tain  property  is  movable  or  immovable  can  be  determined  only  by  the 
law  of  the  country  where  it  is  found.  This  principle  is  applicable  not 
only  in  civil  but  also  in  fiscal  matters.  Therefore,  in  considering  as 
movables,  by  application  of  the  Russian  law,  of  concessions  in  mines 
situated  in  Russia,  the  judgment  appealed  from  made  a  just  application 
of  the  statute  real,  and  violated  none  of  the  provisions  of  law  invoked 
by  the  appellant.  Appeal  dismissed. 


SECTION    II. 


IMMOVABLES. 


CLARK  V.   GRAHAM. 
Supreme  Court  of  the  United  States.     1821. 

[Reported  6  Wheaton,  577.] 

Todd,  J.  This  is  an  action  of  ejectment  l)rought  in  the  Circuit  Court 
for  the  District  of  Ohio.  At  the  trial,  the  plaintiff  proved  a  title  suffi- 
cient in  law,  j^rima  facie,  to  maintain  the  action.  The  controversy 
turned  altogether  upon  the  title  set  up  by  the  defendants.  That  title 
was  as  follows:  A  letter  of  attorney,  purporting  to  be  executed  by 
John  Graham,  bearing  date  the  23d  of  September,  1805,  authorizing 
Nathaniel  Massie  to  sell  all  his  estate,  etc.,  in  all  his  lands  in  Ohio. 
This  power  was  executed  in  the  presence  of  two  witnesses  in  Rich- 
mond, in  Virginia,  and  was  there  acknowledged  by  Graham  before  a 
notary  public. 

Nathaniel  Massie,  by  a  deed  dated  the  7th  day  of  June,  1810,  and 
executed  by  him  in  Ohio,  in  his  own  right,  as  well  as  attorney  to  John 
Graham,  conveyed  to  one  Jacob  Smith,  under  whom  the  defendants 
claimed  the  land  in  controversy.  This  deed  was  executed  in  presence 
of  one  witness  only,  and  was  duly  acknowledged  and  recorded  in  the 
proper  county  in  Oliio.  The  deed  and  letter  of  attorney  so  executed 
and  acknowledged,  were  offered  in  evidence  by  the  defendants,  and 
were  rejected  by  the  court,  upon  the  ground  that  they  were  not  suffi- 
cient to  convey  lands  according  to  the  laws  of  Ohio.  The  defendants 
also  offered  in  evidence  a  deed  from  Jacob  Smith  and  wife,  to  the  said 
Graham,  dated  the  7th  of  March,  1811,  duly  witnessed,  acknowledged, 
and  recorded,  conveying  a  certain  tract  of  land  in  Ohio,  and  offered 
further  to  prove,  that  the  tract  of  land  so  conveyed  was  given  in  ex- 
change for  and  in  consideration  of  the  lands  conveyed  by  the  deed  first 
mentioned  to  Smith.  This  evidence,  also,  was  rejected  by  the  court. 
A  bill  of  exceptions  was  taken  to  these  proceedings  by  the  defendants  ; 
and  the  jury  found  a  verdict  for  the  plaintiff,  upon  whicli  a  judgment 


ti 


SECT.  II.]  CLARK    V.    C.KAlIAM.  151 

was  entered  for  the  plaintiff,  and  the  present  writ  of  error  is  brought 
by  the  defendants  to  revise  that  judgment. 

The  principal  question  before  this  court  is,  whether  the  deed  so  ex- 
ecuted by  Massie  was  sutlicient  to  convey  lanils  by  the  laws  of  Ohio. 
If  not,  it  was  properl}'  rejected  ;  if  otherwise,  the  judgment  should  be 
reversed.  Two  objections  have  been  taken  to  the  execution  of  this 
deed  ;  first,  that  the  power  of  attorney  was  not  duly  acknowledged,  as 
every  deed  is  required  to  be  in  Ohio  in  order  to  convey  lands  ;  and  if 
so,  then  the  subsequent  conveyance  is  voiil,  for  it  is  a  general  principle, 
that  a  power  to  convey  lands  must  possess  the  same  requisites,  and  ob- 
serve the  yame  solemnities,  as  are  necessary  in  a  deed  directly  convey- 
ing the  lands.  On  this  objection,  which  is  apparentl}-  well  founded,  it 
is  unnecessary  to  dwell,  as  another  objection  is  fatal ;  that  is,  the  deed 
of  Massie  was  executed  in  the  presence  of  one  witness  only,  whereas 
the  law  of  Oliio  requires  all  deeds  for  land  to  be  executed  in  the  pres- 
ence of  two  witnesses.  It  is  perfectly  clear,  that  no  title  to  lands  can 
be  acquired  or  passed,  unless  according  to  the  laws  of  the  State  in 
which  the}'  are  situate.  The  act  of  Ohio  regulating  the  conveyance  of 
lands,  passed  on  the  14th  of  February,  1805,  provides,  "that  all  deeds 
for  the  conveyance  of  lands,  tenements,  and  hereditaments,  situate, 
lying,  and  being  within  this  State,  shall  be  signed  and  sealed  by  the 
grantor  in  the  presence  of  ttco  witnesses,  who  shall  subscribe  the  said 
deed  or  conveyance,  attesting  the  acknowledgment  of  the  signing  and 
sealing  thereof;  and  if  executed  within  this  State,  shall  be  acknowl- 
edged by  the  part}-  or  parties,  or  proven  by  the  subscribing  witnesses, 
before  a  judge  of  the  Court  of  Common  Pleas,  or  a  justice  of  the  peace 
in  any  count\-  in  this  State."  Although  there  are  no  negative  words 
in  this  clause,  declaring  all  deeds  for  the  conveyance  of  lands  executed 
in  any  other  manner  to  be  void  ;  yet  this  must  be  necessarily-  inferred 
from  the  clause  in  the  absence  of  all  words  indicating  a  different  legis- 
lative intent,  and  in  point  of  fact  such  is  understood  to  be  the  uniform 
construction  of  the  act  in  the  courts  of  Ohio.  The  deed,  then,  in  this 
case,  not  being  executed  according  to  the  laws  of  the  State,  the  evi- 
dence was  properly  rejected  by  the  Circuit  Court. 

The  remaining  point,  as  to  the  rejection  of  the  evidence  of  the  deed 
from  Smith  to  Graham,  and  the  proof  to  show  that  it  was  given  in  cx- 
cliange  for  the  land  in  controvers}-,  has  not  been  much  relied  on  in  this 
court.  It  is,  indeed,  too  plain  for  argument,  that  if  a  deed  imperfectly 
executed  would  not  convey  an}'  estate  or  interest  in  the  land,  a  paiol 
exchange,  or  parol  proof  o(  an  intention  to  convey  the  same  in  ex- 
change, cannot  be  permitted  to  have  any  such  effect.^ 

Jii(I(jine7it.  (f(ftr»/ed,  imth  costs. 

I  Ace.  Swank  r.  Ilufiiaglc,  111  Iml.  4^,3,  \'2  N.  K.  .lO.'! ;  Kohiiisoii  ?-.  (iiifcii,  87 
Tcnn.  445  ;  Shattuck  i;.  Bates,  02  Wis.  fi."!.3,  (10  N.  \V.  700.  Hut  sec  (Jatos  c.  Caitlicr, 
40  La.  Anil.  280,  l.")  So.  TjO. 

r'onvfjrsely,  a  deed  f^ood  aecordiiif;  to  the  law  of  the  situs  constitutes  af,'()i)il  con- 
veyance, though  it  is  not  good  according  to  tiie  law  of  tlio  place  of  making.     Tost  o. 


152  CAMPBELL   V.   COON.  [CHAP.  VII. 


CAMPBELL  V.  COON. 
Court  of  Appeals,  New  York.     1896. 

[Reported  149  NewYork,  556.] 

Gray,  J.^  The  learned  judges  of  the  General  Term  below  have 
reversed  the  judgment  recovered  by  these  plaintiffs  in  their  action  for 
the  foreclosure  of  a  mechanic's  lien  and  have  ordered  a  dismissal  of 
the  complaint,  upon  the  ground,  as  we  find  in  the  opinion,  that  "•  the 
right  to  a  lien  pursuant  to  the  provisions  of  tlie  Mechanics'  Lien  Law 
(Chap.  342,  Laws  of  1885),  does  not  extend  to  contracts  made  and  to 
be  performed  out  of  this  State."  I  think  that  their  conclusion  was 
erroneous,  and  that  a  consideration  of  the  case  fails  to  disclose  any 
ground  for  the  reversal  of  the  plaintiff's  judgment.  It  appears  from 
this  record,  following  the  findings  of  facts,  that  the  defendant,  Amalie 
Coon,  contracted  with  the  Vanderbeck  Iron  Work  Company,  a  cor- 
poration created  by  the  laws  of  the  State  of  New  Jersey,  to  furnish  and 
erect  the  iron  work  in  a  certain  building  she  was  about  constructing  in 
the  city  of  New  York.  That  companj'  then  made  a  contract  with  the 
plaintiffs,  who  were  also  residents  of  the  State  of  New  Jersey,  by 
which  the  latter  agreed  to  make  certain  iron  lintels  and  iron  separators, 
at  an  agreed  price  and  in  accordance  with  the  contract  between  the 
compan}-  and  Mrs.  Coon,  and  to  deliver  the  same  to  the  Iron  Work 
Companj'  ''at  and  for  the  building"  in  question.  The  plaintiffs  per- 
formed their  agreement,  and  the  materials  called  for  in  their  agreement 
were  delivered  to  the  Iron  Work  Company  "  at  the  city  of  Hoboken  in 
the  State  of  New  Jersey  and  at  No.  368  Greenwich  Street  in  the  city 
of  New  Y^ork"  Cthat  being  the  place  where  the  building  was  being 
erected),  and  all  of  them  "were  actually  used  in  the  construction  of 
the  building  with  the  knowledge  and  consent  "  of  Mrs.  Coon.  It  is 
perfectly  clear,  therefore,  in  the  first  place,  that  under  their  contract 
the  plaintiffs  were  required  to  deliver  the  materials,  which  they  had 
agreed  to  furnish  to  the  Iron  Work  Company,  "  at  and  for  the  building 
in  the  city  of  New  York,"  and,  in  the  second  place,  that  those  materials 
were  actully  used  in  its  construction,  and  is  there  any  satisfactory 
reason  for  denying  to  tliem  the  protection  of  the  statute  because  the 
contract  or  agreement  was  one  made  without  the  State  and  between 

First  Nat.  Bank,  1.38  111.  559,  28  N.  E.  978 ;  Manton  v.  Seiberling,  107  la.  534,  78 
N.  W.  194;  Succession  of  Larendon,  39  La.  Ann.  952,  3  So.  219;  Antonelli  v.  de  la 
Palmira  (French  Cassation,  2  Apr.  1884),  12  Clunet,  77. 

So  the  validity  of  a  conveyance  is  determined  by  the  lex  rei  sitce.  Moore  v.  Church, 
70  la.  208 ;  Goddard  v.  Sawyer,  9  All.  78  ;  Fessenden  ?'.  Taft,  65  N.  H.  39,  17  Atl.  713. 

So  of  the  nature  and  extent  of  the  interest  conveyed,  and  the  state  of  the  title  as  a 
result  of  the  conveyance.  McGoon  r.  Scales,  9  Wall.  41  ;  Glover  v.  U.  S.  29  Ct.  CI. 
236;  Banner  v.  Brewer,  69  Ala.  191  ;  Brouson  v.  St.  Croix  Lumber  Co.,  44  Minn.  348, 
46  N.  W.  570.  — Ed. 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II.]  CAMPBELL    t'.    COON.  153 

non-residents  of  the  State?  I  see  no  reason  for  so  narrowly  constru- 
ing tlie  provisions  of  tlie  Mechanics'  Lien  Law.  By  its  terms  '•  any 
person"  may  have  a  hen,  who  shall  have  furnished  any  materials, 
which  have  been  used  in  the  erection  of  any  building  within  any  of  the 
cities  or  counties  of  this  State.  Undoubtedly,  the  statute  has  no  extra- 
territorial force,  and  was  intended  for  the  protection  of  those  furnish- 
ing materials  within  this  State  ;  as  it  was  held  by  this  court  in  the  case 
of°The  Birmingham  Iron  Foundry  r.  The  Glen  Cove  Starch  Manufac- 
turing Company,  78  N.  Y.  30,  a  case  cited,  and  relied  upon,  in  the 
opinion  of  the  General  Term.  The  facts,  however,  in  that  case  were 
quite  other  than  those  before  us.  There,  the  defendant,  a  New  York 
corporation,  ordered  the  construction  of  a  steam  engine  by  the  Wood- 
ruff Company,  a  Connecticut  corporation,  and  the  bed  plate  for  the 
engine  the  Woodruff  Company  ordered  of  the  plaintiff,  also  a  Con- 
necticut corporation.  Under  the  contract  between  the  defendant  and 
the  Woodruff  Company,  the  engine  was  to  be  delivered  to  the  defentl- 
ant  at  Hartford,  in  the  State  of  Connecticut,  and  the  bed  plate  for  the 
engine,  under  the  sub-contract  with  the  plaintiff,  was  also  to  be  deliv- 
ered at  that  city.  The  delivery  of  the  engine,  complete,  was  in  fact 
made  to  the  defendant  at  Hartford  and  the  defendant  brought  it  into 
this  State  and  to  its  factory.  Under  these  circumstances,  it  was  very 
properly  decided,  inasmuch  as  when  the  engine  was  brought  into  this 
State  it  belonged  to  the  defendant,  that  the  plaintiff  "  furnished  no 
materials  in  this  State,"  and,  therefore,  could  not  claim  the  benefit 
of  the  statute.  In  this  case  the  fact  was,  and  such  was  the  finding  by 
the  referee,  that  under  the  plaintiffs'  agreement  they  were  to  deliver 
the  materials  at  and  for  the  building  in  New  York  City,  which  the 
defendant  was  to  put  up,  and  they  performed  their  agreement  in  that 
respect  and  their  materials  were  actually  used  in  its  construction. 

In  the  opinion  of  the  General  Term,  stress  is  laid  upon  the  fact  that 
no  place  of  payment  was  specified,  and  it  was  reasoned  that  because  the 
State,  wherein  the  contract  was  made  and  the  contracting  parties  re- 
sided, was  in  legal  contemplation  the  place  for  payment,  no  right  could 
be  deemed  to  exist  under  the  statute  entitling  the  plaintiffs  to  a  lien 
upon  the  building  for  their  security.  That  proposition  again  assumes 
for  the  statute  a  purpose  which,  in  our  judgment,  is  not  conveyed  by 
its  language.  The  operation  of  the  Mechanics'  Lien  Law  does  not 
depend  upon  such  incidents  of  the  contract  with  the  materialman  as 
relate  to  its  character,  or  to  the  place  of  payment ;  Init  solely  upon  tlie 
fact  that  the  materialman  has  performed  labor  upon,  or  furnished  ma- 
terials to,  any  building  within  the  State.  The  very  case  to  which  the 
General  Term  opinion  refers,  and  which  we  have  cited  above,  rested, 
in  its  decision,  upon  the  fact  that  the  plaintilf  had  really  furnished  no 
materials  in  this  State.  The  language  of  this  act  is  very  broad  and  we 
perceive  no  limitation  in  its  language,  nor  any  good  reason  for  ri-atling 
one  into  it,  by  which  the  mechanic  is  reciuired  to  be  a  resident  of  the 
State  and  to  make  his  contract  here.     The  materials  must  have  been 


154  CAMMELL    V.   SEWELL.  [CHAP.  VII. 

furnished  and  used  in  the  erection  of  a  building  within  a  city  or  count}' 
of  this  State  and,  when  that  is  the  case,  the  right  of  the  materialman 
to  a  lien  follows,  if  the  provisions  of  the  statute  are  otherwise  complied 
with.^ 


'^^^ 


SECTION     III. 

MOVABLES. 


CAMMELL  V.  SEWELL. 

Exchequer  Chamber.     1860. 

[Reported  5  Hurlstone  <_f  Norman,  728.] 

Trover  for  deals,  with  a  count  for  mone}-  had  and  received.  At  the 
trial  a  verdict  was  taken  for  the  plaintiffs,  subject  to  a  special  case, 
which  was  substantiallv  as  follows.  The  plaintiffs  were  underwriters 
at  Hull ;  the  defendants  merchants  in  London.  The  action  was  brought 
to  recover  part  of  a  cargo  of  deals  shipped  on  board  the  Prussian  ship 
"Augusta  Bertha"  at  Onega,  in  Russia,  by  the  Onega  Wood  Com- 
pany, for  Messrs.  Simpson  &  Whaplate,  of  Hull,  and  by  them  insured 
with  the  plaintiffs.  The  plaintiffs  had  paid  Messrs.  Simpson  &  Wha- 
plate as  for  a  total  loss. 

The  "  Augusta  Bertha  "  having  put  into  Haroe  Roads,  in  Norway,  in 
consequence  of  the  shifting  of  her  deck  cargo,  drove  from  her  anchor- 
age on  the  rocks  at  Smaage,  about  three  miles  from  Molde.  The  cargo 
was  discharged  and  the  vessel  abandoned,  and  the  master  sold  the 
cargo  by  auction  (against  the  protest  of  the  representative  of  the  con- 
signees) to  one  Hans  Clausen,  who  consigned  them  to  the  defendants. 
The  cargo  was  sold  by  the  defendants  for  an  amount  greater  than  the 
insurance  money  paid  b}'  the  plaintiffs. 

By  the  law  of  Norway,  the  sale  by  auction  passed  a  good  title  to  the 
purchaser,  even  if  the  master,  as  between  himself  and  the  owners,  was 
acting  wrongfully.  The  representative  of  the  consignees  instituted  a 
suit  in  the  s'uperior  Diocesan  Court  of  Trondjhem  to  set  aside  the  sale  ; 
but  the  court  confirmed  the  sale. 

The  Court  of  Exchequer  ordered  the  verdict  for  the  plaintiffs  to  be 

1  Ace.  Thurman  v.  Kyle,  71  Ga.  628  ;  U.  S.  Inv.  Co.  v.  Phelps  &  Bigelow  V\r.  M. 
Co.,  54  Kan.  144,  37  Pac.  982;  PiiUis  Bros.  Iron  Co.  v.  Natchitoches,  51  La.  Ann. 
1377,  26  So.  402. 

So  generally  the  extent  of  a  creditor's  rights  to  enforce  payment  out  of  the  debtor's 
land  is  determined  bv  the  lex  rei  sitre.  Harrison  v.  Harrison,  L.  R.  8  Ch.  342  ;  McGoon 
V.  Scales,  9  Wall.  23  ;  Brine  v.  Ins.  Co.,  96  U.  S.  627  ;  Whipple  v.  Fowler,  41  Neb, 
675,60  N.  W.  15.  -Ed. 


SECT.  Ill]  CAMMELL    V.    SEWELL.  155 

set  aside,  and  a  verdict  entered  for  the  defendant;  and  the  plaintiffs 
brought  the  case  into  the  Exchequer  Chamber  on  a  writ  of  error.^ 

Crompton,  J.  In  this  case  the  majority  of  the  court  (Cockbukn, 
C.  J.,  WiGUTMAN,  Williams,  Crompton,  and  Keating,  JJ.)  are  of 
opinion  that  the  judgment  of  the  Court  of  Exchequer  should  be 
atfirmed.  At  the  same  time  we  are  by  no  means  prepared  to  agree 
with  the  Court  of  Exchequer  in  thinking  the  judgment  of  the  Diocesan 
•Court  in  Norway  conclusive  as  a  judgment  in  rem,  nor  are  we  satisfied 
ihat  the  defendants  in  the  present  action  were  estopped  by  the  judg- 
ment of  that  court,  or  what  was  relied  on  as  a  judicial  proceeding  at 
the  auction.  It  is  not,  however,  necessary  for  us  to  express  any  de- 
cided opinion  on  these  questions,  as  we  think  that  the  case  should  be 
determined  on  the  real  merits  as  to  the  passing  of  the  property. 

If  we  are  to  recognize  the  Norwegian  law,  and  if  according  to  that 
law  the  property  passed  by  the  sale  in  Norway  to  Clausen  as  an  inno- 
cent purchaser, 'we  do  not  think  that  the  subsequent  bringing  the  prop- 
erty to.  England  can  alter  the  position  of  the  parties.  The  difficulty 
which  we  have  felt  in  the  case  principally  arises  from  the  mode  in  which 
tlie  evidence  is  laid  before  us  in  the  mass  of  papers  and  depositions 
contained  in  the  appendix. 

We  do  not  see  evidence  in  the  case  sufficient  to  enable  us  to  treat 
the  transaction  as  fraudulent  on  the  part  of  Clausen,  although  there  are 
circumstances  which  would  have  made  it  better  for  him  not  to  liave 
become  the  purchaser.  Treating  him,  therefore,  as  an  innocent  pur- 
chaser, it  appears  to  us  that  the  questions  are,  did  the  property  by  the 
law  of  Norway  vest  in  him  as  an  innocent  purchaser?  and  are  we  to 
recocrnize  that'law?  The  question  of  what  is  the  foreign  law  is  one  of 
fact,°and  here  again  there  is  great  difficulty  in  finding  out  from  the 
mass  of  documents  wliat  is  the  exact  state  of  the  law.  The  conclusion 
which  we  draw  from  the  evidence  is,  that  by  the  law  of  Norway  the 
captain,  under  circumstances  sucli  as  existed  in  this  case,  could  not,  as 
between  himself  and  liis  owners,  or  the  owners  of  the  cargo,  justify  the 
sale,  but  that  he  remained  liable  and  responsible  to  them  for  a  sale  not 
justified  under  the  circumstances  ;  whilst,  on  the  other  hand,  an  inno- 
cent purchaser  would  liave  a  good  title  to  the  property  bought  by  him 
from  the  agent  of  tlie  owners. 

It  does  not  appear  to  us  that  there  is  anything  so  barbarous  or  mon- 
strous in  this  state  of  the  law  as  that  we  can  say  that  it  should  not  be 
recognized  by  us.  Our  own  law  as  to  market  overt  is  analogous  ;  and 
though  it  is  said  that  much  mischief  would  be  done  by  upholding  sales 
of  this  nature,  not  justified  by  tlie  necessities  of  the  casi-,  it  may  well 

1  This  short  statement  of  facts  is  siilistitntod  f<ir  tliat  of  llio  Keijortcrs  in  3  II.  &  X. 
617.  Arguments  of  coiinsfl  are  oinittf^i.  In  tlie  coiir.so  <.f  tlio  ari^nunent,  Co.-khurn, 
C  J  said  ■  "  If  a  per.son  sends  ^ooiU  to  a  foreign  country  it  may  well  ho  that  ho  is 
hound  bv  the  law  of  that  countrv ;  hut  lioro  the  goods  wro  wrecked  on  the  coast  ..f 
Norway^  and  came  there  without  the  owner's  assent.  Culd  tlic  arrival  ..f  the  goods 
there  enlarge  the  cajjtain's  authority  1  "  —  Eu. 


156  CAMMELL    V.    SEWELL.  [CHAP.  VII. 

be  that  the  mischief  would  be  greater  if  the  vendee  were  only  to  have  a 
title  in  cases  where  the  master  was  strictly  justified  in  selling  as  be- 
tween himself  and  the  owners.  If  that  were  so,  purchasers,  who  sel- 
dom can  know  the  facts  of  the  case,  would  not  be  inclined  to  give  the 
value,  and  on  proper  and  lawful  sales  by  the  master  the  property  would 
be  in  great  danger  of  being  sacrificed. 

There  appears  nothing  barbarous  in  saying  that  the  agent  of  the 
owners,  who  is  the  person  to  sell,  if  the  circumstances  justify  the  sale, 
and  who  must,  in  point  of  fact,  be  the  party  to  exercise  his  judgment 
as  to  whether  there  should  be  a  sale  or  not,  should  have  the  power  of 
giving  a  good  title  to  the  innocent  purchaser,  and  that  the  latter  should 
not  be  bound  to  look  to  the  title  of  the  seller.  It  appears  in  the  pres- 
ent case  that  the  one  purchaser  bought  the  whole  cargo  ;  but  suppose 
the  farmers  and  persons  in  the  neighborhood  at  such  a  sale  buy  several 
portions  of  the  goods,  it  would  seem  extremely  inconvenient  if  they 
were  liable  to  actions  at  the  suit  of  the  owners,  on  the  ground  that 
there  was  no  necessity  for  the  sale.  Could  such  a  purchaser  coming 
to  England  be  sued  in  our  courts  for  a  conversion,  and  can  it  alter  the 
case  if  he  resell,  and  the  property  comes  to  this  country? 

Many  cases  were  mentioned  in  the  course  of  the  argument,  and  more 
might  be  collected,  in  which  it  miglit  seem  hard  that  the  goods  of  for- 
eigners should  be  dealt  with  according  to  the  laws  of  our  own  or  of 
other  countries.  Amongst  others  our  law  as  to  the  seizure  of  a  foreign- 
er's goods  for  rent  due  from  a  tenant,  or  as  to  the  title  gained  in  them, 
if  stolen,  by  a  sale  in  market  overt,  might  appear  harsh.  But  we  can- 
not think  that  the  goods  of  foreigners  would  be  protected  against  such 
laws,  or  that  if  the  property  once  passed  by  virtue  of  them,  it  would 
again  be  changed  by  being  taken  by  the  new  owner  into  the  foreigner's 
own  country.  We  think  that  the  law  on  this  subject  was  correctly 
stated  by  the  Lord  Chief  Baron  in  the  course  of  the  argument  in  the 
court  below,  where  he  says  "  if  personal  property  is  disposed  of  in  a 
manner  binding  according  to  the  law  of  the  country  where  it  is,  that 
disposition  is  binding  everywhere."  And  we  do  not  think  that  it  makes 
any  difference  that  the  goods  were  wrecked,  and  not  intended  to  be  sent 
to  the  country  where  they  were  sold.  AYe  do  not  think  that  the  goods 
which  were  wrecked  here  would  on  that  account  be  the  less  liable  to 
our  laws  as  to  market  overt,  or  as  to  the  landlord's  right  of  distress, 
because  the  owner  did  not  foresee  that  they  would  come  to  England. 

Very  little  authority  on  the  direct  question  before  us  has  been  brought 
to  our  notice.  The  only  case  which  seems  at  variance  with  the  prin- 
ciples we  have  enunciated  is  the  case  of  the  ' '  Eliza  Cornish  "  or 
''Segredo,"  before  the  judge  of  the  Court  of  Admiralty.  1  Eccl.  & 
Adm.  36.  If  this  case  be  an  authority  for  the  proposition  that  a  law  of 
a  foreign  country  of  the  nature  of  the  law  of  Norway,  as  proved  in  the 
present  case,  is  not  to  be  regarded  by  the  courts  of  this  country,  and 
that  its  effect  as  to  passing  property  in  the  foreign  country  is  to  be  dis- 
reo-arded,  we  cannot  agree  with  the  decision  :  and.  with  all  the  respect 


SECT.  III.]  CAMMELL    V.    SEWELL.  157 

due  to  so  high  an  authority  in  mercantile  transactions,  we  do  not  feel 
ourselves  bound  by  it  when  sitting  in  a  court  of  error.  We  must  re- 
mark, also,  that  in  the  case  of  Freeman  v.  The  East  India  Company, 
5  B.  &  Aid.  617,  the  Court  of  Queen's  Bench  appear  to  have  assented 
to  the  proposition  that  the  Dutch  law,  as  to  market  overt,  might  have 
had  the  effect  of  passing  the  property  in  such  case  if  the  circumstances 
of  the  knowledge  of  the  transaction  had  not  taken  the  case  out  of  the 
provisions  of  such  law. 

In  the  present  case,  which  is  not  like  the  case  of  Freeman  v.  The 
East  India  Compan}',  the  case  of  an  English  subject  purchasing  in  an 
English  colony  propert}-  which  he  was  taken  to  know  that  the  vendor 
had  no  authority  to  sell,  we  do  not  think  that  we  can  assume  on  the 
evidence  that  the  purchase  was  made  with  the  knowledge  that  the  sell- 
ers had  no  authoritv,  or  under  such  circumstances  as  to  bring  the  case 
within  any  exception  to  the  foreign  law,  which  seems  to  treat  the  mas- 
ter as  having  sufficient  authority  to  sell,  so  as  to  protect  the  innocent 
purchaser  where  there  is  no  representative  of  the  real  owner.  It  should 
be  remarked,  also,  that  Lord  Stowell,  in  the  passage,  cited  in  the  ease 
of  Freeman  v.  The  East  India  Company,  from  his  judgment  in  the  case 
of  the  "  Gratitudine,"  states  that  if  the  master  acts  unwisely  in  his  de- 
cision as  to  selling,  still  the  foreign  purchaser  will  be  safe  under  his 
acts.  The  doctrine  of  Lord  Stowell  agrees  much  more  with  the  prin- 
ciples on  which  our  judgment  proceeds  than  with  those  reported  to 
have  been  approved  of  in  the  case  of  the  '*  Eliza  Cornish,"  as,  on  the 
evidence  before  us,  we  cannot  treat  Clausen  otherwise  than  as  an  inno- 
cent purchaser,  and,  as  the  law  of  Norway  appears  to  us,  on  the  evi- 
dence, to  give  a  title  to  an  innocent  purchaser,  we  think  that  the 
property  vested  in  him,  and  in  the  defendants  as  sub-purchasers  from 
him,  and  that,  having  once  so  vested,  it  did  not  become  divested  by 
its  being  subsequently  brought  to  this  country,  and,  therefore,  that  the 
judgment  of  the  Court  of  Exchequer  should  be  atlirmcd. 

CoCKBL'KN,  C.  J.  Concurring  in  tiie  judgment  delivered  by  my  brotiier 
Crompton,  it  further  a{)pears  to  me  that  the  case  may  also  be  put  upon 
another  and  a  shorter  ground. 

Although  the  goods  in  question  were  at  one  time  the  property  of 
English  owners,  the  pro[)erty  in  them  was  transferred  to  others  by  a 
sale  valid  according  to  the  law  of  Norway,  a  country  in  wiiich  the  goods 
were  at  the  time  of  such  sale. 

Even  if  it  were  admitted,  for  the  purpose  of  argument,  that  bj-  the 
law  of  the  countr}'  to  which  the  ship  l)eionged  the  master  would  not 
have  had  the  power  to  dispose  of  the  ship  or  cargo  in  case  of  wreck, 
which  the  law  of  Norway  gives  in  such  a  case,  and  that  the  law  of 
Norway  would  be  overridden  by  the  law  of  tlic  nation  to  which  the 
ship  belonged,  then  it  is  to  be  observed  tlial,  the  ship  having  been  a 
Prussian  ship,  and  the  qarrier-s,  the  shipowners,  Prussians,  and  tlic 
goods  having  ])ecn  shipped  in  Russia,  tlie  power  of  the  master  nuist 
depend  on  the  law  either  of  tlie  country  to  wliich  the  siiij)  belonged,  or 


158  LANGWOKTHY   V.   LITTLE.  [CHAP.  VIL 

of  the  place  where  the  contract  to  carry  was  entered  into.  The  law  of 
England,  never  having  attached  to  the  goods,  as  they  never  were  on 
board  an  English  vessel  or  reached  British  territory,  cannot  apply  to 
the  case.  The  law  of  nations  cannot  determine  the  question,  for  the 
international  law  is  by  no  means  uniform  as  to  the  powers  of  a  master, 
as  abundantly  appeared  from  the  various  codes  which  were  brought 
to  our  notice  during  the  argument.  But  no  evidence  was  adduced  to 
show  what  was  the  law  of  Prussia  or  that  of  Russia  in  the  matter  in 
question. 

The  case  therefore  stands  nakedly  thus,  —  a  good  contract  of  sale  to 
transfer  the  propert}'  in  Norway,  without  anything  to  show  that  b}'  the 
general  law  of  nations,  or  by  the  law  of  any  nation  which  can  possibly 
apply  to  the  present  case,  the  sale  valid  in  Norway  can  be  invalidated 
elsewhere. 

Byles,  J.,  dissented.  Judgment  affirmed.^ 


LANGWORTHY  v.    LITTLE. 
Supreme  Judicial  Couut  of  Massachusetts.     1853. 

[Reported  12  Gushing,  109.] 

This  was  an  action  of  tort  for  a  horse  and  buggy  wagon,  attached 
by  the  defendant,  a  deputy-sheriff,  as  the  property  of  one  Charles  E. 
McCarty,  September  11,  1849.  The  plaintiff,  an  inhabitant  of  Hills- 
dale, in  the  State  of  New  York,  claimed  title  under  a  prior  mortgage 
from  said  McCarty,  made  and  dated  at  said  Hillsdale,  September  1, 
1849,  at  which  time  the  property  was  at  Hillsdale,  and  in  the  posses- 
sion of  said  McCarty.  The  mortgage  was  duly  filed  in  the  town-clerk's 
office  of  Hillsdale,  according  to  the  laws  of  New  York,  which  were  pro- 
duced and  read  at  the  trial  in  the  Court  of  Common  Pleas.  Rev.  Sis. 
of  New  York,  vol.  2,  p.  71.  The  plaintiff  also  proved  a  due  demand 
on  the  defendant  for  the  payment  of  the  amount  due  him  on  said  mort- 
gage, pursuant  to  Rev.  Sts.  c.  90,  §  79,  and  that  payment  was  refused. 
The  defendant  offered  to  prove  that  said  McCarty,  the  mortgagor,  at 

1  The  general  rule  that  the  passing  of  title  to  a  chattel  is  determined  by  the  law  of 
the  situs,  not  by  that  of  the  place  of  making  the  contract  of  transfer,  nor  by  tliat  of  the 
domicil  of  the  owner,  is  well  established.  Mackey  v.  Pettyjohn,  6  Kan.  App.  57,  49  Pac. 
636 ;  Ames  r.  McCamber,  124  Mass.  85.  (See,  however,  N.  W.  Bank  v.  Poynter  [1895], 
A.  C.  56;  Fouke  v.  Fleming,  13  Md.  392.)  Thus  the  requirements  as  to  registration 
depend  upon  the  law  of  the  situs.  Coote  v.  Jecks,  L.  R.  13  Eq.  597 ;  Gosline  i-.  Dnii; 
bar,  32  N.  B.  325.  If  the  title  has  passed  by  the  law  of  the  situs,  the  new  title  is 
recognized  in  any  State  into  which  the  goods  may  be  brought ;  and  tliis  although  by 
the  law  of  the  latter  State  the  title  would  not  have  passed.  This  rule  obtains  whether 
the  title  passed  by  consent  of  the  parties,  Kabun  v.  Rabun,  15  La.  Ann.  471  ;  Sleeper 
?,'.  Pa.  R.  R.,  100  Pa.  259 ;  or  by  operation  of  law,  as,  for  instance,  by  the  statute  of 
limitations.  Shelby  v.  Guy,  11  Wheat.  361 ;  Brown  v.  Brown,  5  Ala.  508;  Waters  v. 
Barton,  1  Cold.  450.  —  Ed. 


SECT.  III.]  LANGWORTHY    V.    LITTLE.  159 

the  time  of  making  the  mortgage,  resided  in  the  town  of  Mount  Wash- 
ington, in  this  county,  and  after  the  mortgage  was  made,  immediatelj- 
returned  with  it  to  this  State,  and  the  same  remained  here  in  his  pos- 
session, until  it  was  attached  by  the  defendant,  on  a  writ  in  favor  of 
citizens  of  Connecticut,  who  had  no  knowledge  of  the  mortgage  ;  nor 
was  the  same  recorded  in  the  town  of  Mount  Washington.  Mellen,  J., 
ruled  that  these  facts  constituted  no  defence  to  the  action,  and  the  ver- 
dict being  for  the  plaintiff,  the  defendant  excepted  to  such  ruling. 
Tlie  other  facts  of  the  case  are  stated  in  the  opinion.^ 

Shaw.  C.  J.  This  mortgage  of  personal  property  was  made  in  New 
York,  the  property  then  being  there,  to  a  citizen  of  New  York,  there 
residing,  recorded  in  the  town-clerk's  office  in  the  town  of  Hillsdale, 
New  York,  and  so  made  as  to  be  valid,  and  bind  the  property  in  that 
State.  Being  removed  into  Massachusetts,  it  was  here  attached  by  the 
defendant,  as  the  property  of  the  mortgagor.  The  property  in  question 
was  a  horse  and  buggy  wagon,  and  it  appeared  that  the  horse  and 
wagon  were  sold  by  the  plaintiff  at  Hillsdale,  to  McCarty,  the  mort- 
gagor, and  mortgaged  back  at  the  same  time,  to  secure  McCarty's  note 
given  at  the  same  time,  in  part  payment  for  said  purchase.  The  plain- 
tiff, b}'  this  conveyance,  acquired  a  good  qualified  title  to  the  property-, 
by  the  laws  of  the  State  of  New  York,  a  property  sufficient  to  enable 
him  to  maintain  trover  against  a  wrongdoer ;  and  an  officer  attaching 
the  property  as  the  property  of  the  mortgagor,  especially  without  pay- 
ing, and  in  fact  refusing  to  pay  the  debt  of  the  mortgagee,  when  noti- 
fied to  him  and  demanded  of  him,  is  as  to  him  a  wrongdoer.  A  party 
who  obtains  a  good  title  to  property,  absolute  or  qualified,  by  the  laws 
of  a  sister  State,  is  entitled  to  maintain  and  enforce  those  rights  in  this 
State.     It  is  a  case  where  the  lex  loci  contractus  must  govern. 

We  think  there  is  no  ground  for  the  argument,  that  by  the  St.  1843, 
c.  72,  this  mortgage  should  have  been  recorded  by  the  clerk  of  the 
town  where  the  mortgagor  resides,  and  also  of  the  town  where  he  prin- 
cipally transacts  his  business,  or  follows  his  calling,  and  that  said  stat- 
ute obviously  applies  only  to  mortgages  made  in  Massachusetts. 

Exceptions  overruled!^ 

^  Arguments  of  counsel  are  omitted.  —  Ed. 

2  Ace.  U.  S.  Bank  v.  Lee,  L3  Pet.  107;  Alferitz  v.  Ingalls,  8.3  Fed.  964;  Beall  v. 
Williamson,  14  Ala.  55;  Hall  v.  Pillow,  31  Ark.  32  ;  Ballard  v.  Winter,  39  Conn.  179; 
Peterson  v.  Kaigler,  78  Ga.  464,  3  S.  E.  655  ;  Mumford  v.  Canty,  50  111.  370 ;  Smith 
D.  McLean,  24  la.  322;  Handley  v.  Harris,  48  Kan.  606,  29  Pac.  1145;  Kecnan  v. 
Stimson,  32  Minn.  377,  20  N.  W.  364 ;  Barker  v.  Stacy,  25  Miss.  471  ;  Smith  v.  Ilutch- 
ings,  30  Mo.  380;  Offutt  v.  Flagg,  10  N.  H.  46;  Ilornthal  v.  Burwell,  109  N.  C. 
10,  13  S.  E.  721  ;  Wilson  v.  Rustad,  7  N.  D.  .330,  75  N.  W.  260;  Kanaga  ?'.  Taylor, 
7  Ohio  S.  134;  Greenville  Nat.  Bank  v.  Evans-Snyder-Buel  Co.,  9  Okla.  353;  Cren- 
shaw V.  Anthony,  Mart.  &  Y.  102;  Craig  v.  Williams,  90  Va.  500,  185  E.  899;  Mc- 
Gregor V.  Kerr,  29  N.  S.  45. 

Contra,  Wilson  v.  Carson,  12  Md.  54;  Corbett  v.  Littlefield,  84  Mich.  30  (see 
Vining  v.  Millar,  109  Mich.  205,  67  N.  W.  126)  ;  Armitage  v.  Spahn,  4  Pa.  Dist.  Ct. 
270.     And  see  Jones  i-.  Taylor,  30  Vt.  42. 

In  Greenville  Nat.  Bank  v.  E.  S.  B.  Co.,  sxtpra,  Burwell,  J.,  said :  "  H  these 
mortgages  were  valid  mortgages  where  execnted  and  wliere  the  property  was  located 


160  GREEN   V.   VAN   BUSKIRK.  [CHAP.  VH. 


GREEN  V.  VAN   BUSKIRK. 
Supreme  Court  of  the  United  States.     1866,  1886. 
[Reported  5  Wallace,  307  ;  7  Wallace,  139.] 

Motion  to  dismiss  a  writ  of  error  to  the  Supreme  Court  of  the  State 
of  New  York. 

The  Constitution  of  the  United  States  declares  (Section  1,  Article 
4)  that  full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State  ;  and  that 
Congress  may  by  general  laws  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Under  the  power  here  conferred,  Congress,  by  act  of  1790,  May  26, 
1  Stat,  at  Large,  122,  provides  that  records,  authenticated  in  a  way 
which  it  prescribes,  shall  "  have  such  faith  and  credit  given  to  them  in 
every  other  court  of  the  United  States  as  they  have  by  law  or  usage 
in  the  court  from  which  they  are  taken." 

With  this  provision  of  the  Constitution  and  this  law  in  force.  Bates 
being  the  owner  of  certain  iron  safes  at  Chicago,  in  the  State  of  Illi- 
nois, on  the  3d  day  of  November,  1857,  executed  and  delivered,  in  the 
State  of  New  York,  to  Van  Buskirk  and  others,  a  chattel  mortgage  of 
them.  On  the  5th  day  of  the  same  month  Green  caused  to  be  levied 
on  the  same  safes  a  writ  of  attachment,  sued  by  him  out  of  the  proper 
court  in  Illinois,  against  the  property  of  Bates.  The  attachment  suit 
proceeded  to  judgment,  and  the  safes  were  sold  in  satisfaction  of 
Green's  debt.  Van  Buskirk,  Green,  and  Bates  were  all  citizens  of 
New  York.  Green's  attachment  was  levied  on  the  safes  as  the  prop- 
erty of  Bates,  before  the  possession  was  delivered  to  Van  Buskirk,  and 
before  the  mortgage  from  Bates  to  him  was  recorded,  and  before  notice 
of  its  existence. 

Van  Buskirk  afterwards  sued  Green,  in  the  New  York  courts,  for  the 
value  of  the  safes  thus  sold  under  his  attachment,  and  Green  pleaded 
the  proceeding  in  the  court  of  Illinois  in  bar  of  the  action.  In  this  suit 
thus  brought  by  him  in  the  New  York  courts.  Van  Buskirk  obtained 
judgment,  and  the  judgment  was  affirmed  in  the  highest  court  of  the 
State  of  New  York.  From  this  affirmance  Green  took  a  writ  of  error 
to  this  court,  assuming  the  case  to  fall  within  the  twenty-fifth  section  of 
the  Judiciary  Act,  which  gives  such  writ  in  any  case  wherein  is  drawn 
in  question  a  clause  of  the  Constitution  of  the  United  States,  and  the 

at  the  time,  the  rights  of  the  mortgagee  are  vested  rights  which  cannot  be  taken  away 
from  it.  .  .  .  We  have  no  doubt  but  that  the  legislature  has  the  power  to  enact  a  law 
providing  for  the  filing  of  chattel  mortgages  executed  in  another  State  within  a  reason- 
able time  after  the  mortgaged  property  is  brought  into  this  territory,  aud  to  provide 
that  such  mortgage  shall  be  absolutely  void  as  against  creditors,  and  purchasers,  and 
incumbrancers  in  good  faith  for  value,  if  not  filed  within  the  time  fixed ;  but  this  has 
not  been  done." 


SECT.  III.]  GREEN    V.    VAX    BUSKIRK.  161 

decisioa  is  against  the  title,  right,  or  privilege  specially  set  up.  Ilis 
assumption  was  that  the  faith  and  credit  which  the  judicial  proceedings 
in  the  courts  of  the  State  of  Illinois  had  by  law  and  usage  in  that 
State,  were  denied  to  them  by  the  decision  of  the  courts  of  New  York, 
and  that  in  such  denial,  those  courts  decided  against  a  right  claimed  by 
him  under  the  above-mentioned  Section  1,  Article  4,  of  the  Constitu- 
tion, and  the  act  of  Congress  of  ^lay  26,  1790,  on  the  subject  of  it.^ 

Miller,  J.  The  section  of  the  Constitution  discussed  in  this  case, 
declares  that  ' '  full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other  State  ; 
and  that  Congress  ma}',  bj'  general  laws,  prescribe  the  manner  in 
which  such  acts,  records,  and  proceedings  shall  be  proved,  and  the 
effect  thereof.'' 

The  act  of  1790  was  intended  to  be  an  exercise  of  the  power  con- 
ferred upon  Congress  by  this  section.  In  the  leading  case  of  Mills  r. 
Duryee,  7  Cranch,  481,  this  court  held  that  the  act  in  question  did 
declare  the  effect  of  such  judicial  records,  and  that  it  should  be  the 
same  in  other  States  as  that  in  which  the  proceedings  were  had.  In 
the  case  of  Christmas  v.  Russell*,  5  Wall.  290,  decided  at  the  present 
term  of  the  court,  we  have  reaffirmed  this  doctrine,  and  have  further 
declared  that  no  State  can  impair  the  effect  thus  to  be  given  to  judicial 
proceedings  in  her  sister  State,  by  a  statute  of  limitation  intended  to 
operate  on  demands  which  may  have  jjassed  into  judgment  by  such 
proceedings,  as  though  no  such  judgment  had  been  rendered. 

The  record  before  us  contains  the  pleadings  in  the  case,  the  facts 
found  by  the  court,  and  the  conclusions  of  law  arising  thereon.  And 
nothwithstanding  the  inverted  manner  in  which  the  court  has  stated  its 
legal  conclusions,  it  seems  clear  that  it  did  pass  upon  the  effect  of  the 
judicial  proceedings  in  Illinois  upon  the  title  of  the  propert}-  in  contest. 
The  case  is  not  varied  by  declaring  that  the  mortgage  made  and  deliv- 
ered in  New  York  overreached  the  subsequent  attachment  in  Illinois. 
According  to  the  view  taken  by  that  court,  Van  Buskirk,  the  plaintiff, 
liad  title  to  the  property  under  the  laws  of  New  York  b}'  virtue  of  his 
mortgage,  and  the  question  to  be  decided  was  whether  the  proceedings 
in  Illinois  were  paramount  in  their  effect  ui)on  the  title  to  the  New 
York  mortgage. 

It  is  said  that  Van  Buskirk  being  no  party  to  the  proceedings  in 
Illinois  was  not  bound  by  them,  l)ut  was  at  liberty  to  assert  his  claim 
to  the  property  in  any  forum  that  might  be  open  to  him  ;  and,  strictly 
speaking,  this  is  true.  He  was  not  bound  by  way  of  estoppel,  as  he 
would  have  been  if  he  had  appeared  and  submitted  his  claim,  and  con- 
tested the  proceedings  in  attacliment.  He  lias  a  right  to  set  up  any 
title  to  the  propert}'  which  is  superior  to  that  conforrod  by  the  attach- 
ment proceedings,  and  he  has  the  further  rigiit  to  show  that  the  proj!)- 
erty  was  not  liable  to  the  attachment,  —  a  right  from  which  he  would 

1   Arguniotits  of  {•oiiuscl  arc  oiiiittcil.  — Kn 

VOL.  II.  —  11 


162  GREEN    V.    VAN    BUSKIRK.  [CHAP.  VII. 

have  been  barred  if  be  had  been  a  part}-  to  that  suit.  And  this  question 
of  tlie  liabilit\-  of  the  property-  in  controvers}-  to  that  attacbment  is  the 
question  which  was  raised  by  the  suit  in  New  York,  and  which  was 
there  decided.  That  court  said  that  this  question  must  be  decided  by 
the  laws  of  the  State  of  New  York,  because  that  was  the  domicil  of  the 
owner  at  the  time  the  conflicting  claims  to  the  property  originated. 

We  are  of  opinion  that  the  question  is  to  be  decided  by  the  effect 
given  by  the  laws  of  Illinois,  wbere  the  property  was  situated,  to  the 
proceedings  in  the  courts  of  that  State,  under  which  it  was  sold. 

Thei'e  is  no  little  conflict  of  authorit}-  on  the  general  question  as  to 
how  far  the  transfer  of  personal  property  by  assignment  or  sale,  made 
in  the  country  of  the  domicil  of  the  owner,  will  be  held  to  be  valid  ni 
the  courts  of  the  country  wliere  the  property  is  situated,  when  these 
are  in  diflferent  sovereignties.  The  learned  author  of  the  Commen- 
taries on  the  Conflict  of  Laws  lias  discussed  the  subject  with  his  usual 
exhaustive  research.  And  it  may  be  conceded  that  as  a  question  of 
comity,  the  weight  of  his  authority'  is  in  favor  of  the  proposition  that 
such  transfers  will  generally  be  respected  by  the  courts  of  the  country 
where  the  property  is  located,  although  the  mode  of  transfer  may  be 
different  from  that  prescribed  by  the  local  law.  The  courts  of  Ver- 
mont and  Louisiana,  which  have  given  this  question  the  fullest  con- 
sideration, have,  however,  either  decided  adversely  to  this  doctrine  or 
essentially  modified  it.  Taylor  v.  Boardman,  25  Vt.  589  ;  Ward  v. 
'Morrison,  id.  593  ;  Emmerson  v.  Partridge,  27  Vt.  8  ;  Oliver  v.  Townes, 
14  Mart.  La.  93  ;  Norris  v.  Mumford,  4  Mart.  La.  20.  Such  also  seems 
to  have  been  the  view  of  the  Supreme  Court  of  Massachusetts.  Lanfear 
V.  Sumner,  17  Mass.  110. 

But  after  all,  this  is  a  mere  principle  of  comity  between  the  courts, 
which  must  give  way  when  the  statutes  of  the  country  where  property 
is  situated,  or  the  established  policy  of  its  laws  prescribe  to  its  courts 
a  different  rule.  The  learned  commentator,  already  referred  to,  in 
speaking  of  the  law  in  Louisiana  which  gives  paramount  title  to  an 
attaching  creditor  over  a  transfer  made  in  another  State,  which  is  the 
domicil  of  the  owner  of  the  property,  says:  "No  one  can  seriously 
doubt  that  it  is  competent  for  any  State  to  adopt  such  a  rule  in  its 
own  legislation,  since  it  has  perfect  jurisdiction  over  all  property,  per- 
sonal as  well  as  real,  within  its  territorial  limits.  Nor  can  such  a  rule, 
made  for  the  benefit  of  innocent  purchasers  and  creditors,  be  deemed 
justly  open  to  the  reproach  of  being  founded  in  a  narrow  or  a  selfish 
policy."  Story  on  the  Conflict  of  Laws,  §  390.  Again,  he  says: 
"  Every  nation,  having  a  right  to  dispose  of  all  the  property  actually 
situated  within  it,  has  (as  has  been  often  said)  a  right  to  protect  itself 
and  its  citizens  against  the  inequalities  of  foreign  laws,  which  are  in- 
jurious to  their  interests." 

Chancellor  Kent,  in  commenting  on  a  kindred  subject,  namely,  the 
law  of  contracts,  remarks,  2  Com.  599  :  "  But,  on  this  subject  of  con- 
flicting laws,  it  may   be  generallv  ob^iM-vod  tluit   tiiere    is  a  stubborn 


SECT.  JIl.]  GREEN    V.    VAN    BUSKIRK.  163 

principle  of  jurisprudence  that  will  often  intervene  and  act  with  con- 
trolling efficac\'.  This  principle  is,  that  where  the  lex  loci  contractus 
and  the  lex  fori,  as  to  conflicting  rights  acquired  in  each,  come  in  direct 
collision,  the  comit}'  of  nations  must  yield  to  the  positive  law  of  the 
land." 

In  the  case  of  Milne  v.  Moreton,  6  Bin.  3G1,  the  Supreme  Court  of 
Pennsylvania  says,  that  "■  ever}'  country'  has  a  right  of  regulating  the 
transfer  of  all  personal  propertj'  within  its  territory  ;  but  when  no  posi- 
tive regulation  exists,  the  owner  transfers  it  at  his  pleasure." 

The  Louisiana  court,  in  a  leading  case  on  this  subject,  gives,  in  the 
following  language,  a  clear  statement  of  the  foundation  of  this  princi- 
ciple :  "  The  municipal  laws  of  a  country  have  no  force  beyond  its 
territorial  limits,  and  when  another  government  permits  these  to  be 
carried  into  effect  within  her  jurisdiction,  she  does  so  upon  a  principle 
of  comity.  In  doing  so,  care  must  be  taken  that  no  injury  is  inflicted 
on  her  own  citizens,  otherwise  justice  would  be  sacrificed  to  comity. 
.  .  .  If  a  person  sends  his  property*  within  a  jurisdiction  different  from 
that  where  he  resides,  he  impliedl}-  submits  it  to  the  rules  and  regula- 
tions in  force  in  the  country  where  he  places  it." 

Apart  from  the  question  of  authority,  let  us  look  at  some  of  the 
consequences  of  the  doctrine  held  by  the  court  of  New  York. 

If  the  judgment  rendered  against  the  plaintiff  in  error  is  well  founded, 
then  the  sheriff  who  served  the  writ  of  attachment,  the  one  who  sold 
the  property  on  execution,  any  person  holding  it  in  custod}^  pending 
the  attachment  proceeding,  the  purchaser  at  the  sale,  and  all  who  have 
since  exercised  control  over  it,  are  equally  liable. 

If  the  judgment  in  the  State  of  Illinois,  while  it  protects  all  such  per- 
sons against  a  suit  in  that  State,  is  no  protection  anywhere  else,  it  fol- 
lows that  in  every  case  where  personal  property  has  been  seized  under 
attachment,  or  execution  against  a  non-resident  debtor,  the  officer 
whose  duty  it  was  to  seize  it,  and  any  other  person  having  any  of  the 
relations  above  described  to  the  proceeding,  may  be  sued  in  any  other 
State,  and  subjected  to  heavy  damages  b}-  reason  of  secret  transfers  of 
which  they  could  know  nothing,  and  which  were  of  no  force  in  the  juris- 
diction where  the  proceedings  were  had,  and  where  the  property  was 
located. 

Another  consequence  is  that  the  debtor  of  a  non-resident  may  be 
sued  by  garnishee  process,  or  by  foreign  attachment  as  it  is  sometimes 
called,  and  be  compelled  to  pay  the  debt  to  some  one  having  a  demand 
against  his  creditors  ;  but  if  he  can  be  caught  in  some  other  State,  ho 
nia}'  be  made  to  pay  the  debt  again  to  some  person  who  had  an  assign- 
ment of  it,  of  which  he  was  ignorant  when  he  was  attached. 

The  article  of  the  Constitution,  and  the  act  of  Congress  relied  on  by 
the  plaintiff  in  error,  if  not  expressly  designed  for  such  cases  as  these, 
find  in  them  occasions  for  their  most  beneficent  operation. 

We  do  not  here  decide  that  the  proceedings  in  the  State  of  Illinois 
have  there  the  effect  which  plaintiff  claims   for  them,  because  that 


164  GREEN   V.   VAN    BUSKIRK.  [CHAP.  VIL 

must  remain  to  be  decided  after  argument  on  the  merits  of  the  case. 
But  we  hold  that  the  effect  which  these  proceedings  have  there,  by  the 
law  and  usage  of  that  State,  was  a  question  necessarily  decided  by  the 
New  York  courts,  and  that  it  was  decided  against  the  claim  set  up  by 
plaintiff  in  error  under  the  constitutional  provision  and  statute  referred 
to,  and  that  the  case  is  therefore  properly  here  for  review. 

llotion  to  dismiss  overruled. 
Nelson  and  Swayne,  JJ.,  dissenting. 

Davis,  J.  [on  the  merits]."^  It  should  be  borne  in  mind  in  the  dis- 
cussion of  this  case,  that  the  record  in  the  attachment  suit  was  not 
used  as  the  foundation  of  an  action,  but  for  purposes  of  defence.  Of 
course  Green  could  not  sue  Bates  on  it,  because  the  court  had  no  juris- 
diction of  his  person ;  nor  could  it  operate  on  an}-  other  property  be- 
longing to  Bates  than  that  which  was  attached.  But  as  by  the  law  of 
Illinois  Bates  was  the  owner  of  the  iron  safes  when  the  writ  of  attach- 
ment was  levied,  and  as  Green  could  and  did  lawfully  attach  them  to 
satisfy  his  debt  in  a  court  which  had  jurisdiction  to  render  the  judg- 
ment, and  as  the  safes  w^ere  lawfully  sold  to  satisfy  that  judgment,  it 
follows  that  when  thus  sold  the  right  of  property  in  them  was  changed, 
and  the  title  to  them  became  vested  in  the  purchasers  at  the  sale.  And 
as  the  effect  of  the  levy,  judgment,  and  sale  is  to  protect  Green  if  sued 
in  the  courts  of  Illinois,  and  these  proceedings  are  produced  for  his  own 
justification,  it  ought  to  require  no  argument  to  show  that  when  sued 
in  the  court  of  another  State  for  the  same  transaction,  and  he  justifies 
in  the  same  manner,  that  he  is  also  protected.  Any  other  rule  would 
destroy  all  safety  in  derivative  titles,  and  deny  to  a  State  the  power  to 
regulate  the  transfer  of  personal  property  within  its  limits  and  to  sub- 
ject such  property  to  legal  proceedings. 

Attachment  laws,  to  use  the  words  of  Chancellor  Kent,  "  are  legal 
modes  of  acquiring  title  to  property  by  operation  of  law."  They  exist 
in  every  State  for  the  furtherance  of  justice,  with  more  or  less  of  liber- 
ality to  creditors.  And  if  the  title  acquired  under  the  attachment  laws 
of  a  State,  and  which  is  valid  there,  is  not  to  be  held  valid  in  every 
other  State,  it  were  better  that  those  laws  were  abolished,  for  they 
would  prove  to  be  but  a  snare  and  a  delusion  to  the  creditor. 

The  Vice- Chancellor  of  New  York,  in  Cochran  v.  Fitch,  1  Sandf. 
Ch.  146,  when  discussing  the  effect  of  certain  attachment  proceedings 
in  the  State  of  Connecticut,  says :  "  As  there  was  no  fraud  shown, 
and  the  court  in  Connecticut  had"  undoubted  jurisdiction  in  rem  against 
the  complainant,  it  follows  that  I  am  bound  in  this  State  to  give  to  the 
proceedings  of  that  court  the  same  faith  and  credit  they  would  have  in 
Connecticut."  As  some  of  the  judges  of  New  York  had  spoken  of  these 
proceedings  in  another  State,  without  service  of  process  or  appearance, 
as  being  nullities  in  that  State  and  void,  the  same  vice-chancellor  says : 
"  But  these  expressions  are  all  to  be  referred  to  the  cases  then  under 
1  Part  of  the  opiuion  is  omitted.  — Ed. 


SECT.  III. J  GREEN    V.    VAN    BUSKIIUv.  165 

consideration,  and  it  will  be  found  that  all  those  were  suits  brought 
upon  the  foreign  judgment  as  a  debt,  to  enforce  it  against  the  person 
of  the  debtor,  in  which  it  was  attempted  to  set  up  the  judgment  as  one 
binding  on  the  person." 

The  distinction  between  the  effect  of  proceedings  by  foreign  attach- 
ments, when  offered  iu  evidence  as  the  ground  of  recovery  against  the 
person  of  the  debtor,  and  their  effect  when  used  in  defence  to  justify 
the  conduct  of  the  attaching  creditor,  is  manifest  and  supported  by 
authority.  Cochran  v.  Fitch,  1  Sandf.  Ch.  146  ;  Kane  v.  Cook,  8  Cai. 
449.  Chief  Justice  Parker,  in  Hall  r.  Williams,  6  Pick.  232,  speak- 
mg  of  the  force  and  effect  of  judgments  recovered  in  other  States,  says  : 
''  Such  a  judgment  is  to  conclude  as  to  everything  over  which  the  court 
which  rendered  it  had  jurisdiction.  If  the  property  of  the  citizen  of 
another  State,  within  its  lawful  jurisdiction,  is  condemned  by  lawful 
process  there,  the  decree  is  final  and  conclusive." 

It  would  seem  to  be  unnecessary  to  continue  this  investigation 
further,  but  our  great  respect  for  the  learned  court  that  pronounced 
the  judgment  in  this  case,  induces  us  to  notice  the  ground  on  which 
the}"  rested  their  decision.  It  is,  that  the  law  of  the  State  of  New  York 
is  to  govern  this  transaction,  and  not  the  law  of  the  State  of  Illinois 
where  the  propert}'  was  situated  ;  and  as,  by  the  law  of  New  York, 
Bates  had  no  property-  in  the  safes  at  the  date  of  the  \e\y  of  the  writ  of 
attachment,  therefore  none  could  be  acquired  by  the  attachment.  The 
theory  of  the  case  is,  that  the  voluntary  transfer  of  personal  property 
is  to  be  governed  everywhere  b}'  the  law  of  the  owner's  domicil,  and 
this  theory  proceeds  on  the  fiction  of  law  that  the  domicil  of  the  owner 
draws  to  it  the  personal  estate  which  he  owns  wherever  it  may  happen 
to  be  located.  But  this  fiction  is  by  no  means  of  universal  application, 
and  as  Judge  Stor\'  says,  "  yields  whenever  it  is  necessary  for  the 
purposes  of  justice  that  the  actual  situs  of  the  thing  should  be  ex- 
amined." It  has  yielded  in  New  York  on  the  power  of  the  State  to 
tax  the  personal  propert}'  of  one  of  her  citizens,  situated  in  a  sister 
State  (The  People  ex.  rel.  Hoyt  v.  The  Commissioner  of  Taxes,  23 
N.  Y.  225),  and  always  j'ields  to  "  laws  for  attaching  the  estate 
of  non-residents,  because  sucli  laws  necessarily  assume  that  proijcrt}' 
has  a  situs  entirely  distinct  from  the  owner's  domicil."  If  Now  York 
cannot  compel  the  personal  property  of  Bates  (one  of  her  citizens)  in 
Chicago  to  contribute  to  the  expenses  of  her  government,  and  if  Bates 
had  the  legal  right  to  own  sucih  property'  there,  and  was  protected  in 
its  ownership  by  the  laws  of  the  State,  and  as  the  power  to  protect 
implies  the  right  to  regulate,  it  would  seem  to  follow  that  the  douiinion 
of  Illinois  over  the  property  was  complete,  and  her  right  perfect  to 
regulate  its  transfer  and  subject  it  to  process  and  execution  in  her  own 
Avay  and  by  her  own  laws. 

We  do  not  propose  to  discuss  tlie  ([uostion  how  far  tlie  transfer  of 
personal  property  lawful  in  the  owncn-'s  domicril  will  hv  respected  iu  the 
courts  of  the  country  where  the  propcily  is  localt'd  and  a  ditTcicnt  luU; 


166  HEKVEY    V.    RHODE    ISLAND    LOCOMOTIVE    WORKS.       [CHAP.  VIL 

of  transfer  prevails.  It  is  a  vexed  question,  on  wliich  learned  court-s 
have  differed ;  but  after  all  there  is  no  absolute  right  to  have  such 
transfer  respected,  and  it  is  onl}-  on  a  principle  of  comit}'  that  it  is 
ever  allowed.  And  this  principle  of  comity  always  yields  when  the 
laws  and  policy  of  the  State  where  the  property  is  located  has  pre- 
scribed a  different  rule  of  transfer  with  that  of  the  State  where  the 
owner  lives.  Judgment  for  the  jjlaintiff  in  error} 


HERVEY  /•.  RHODE   ISLAND   LOCOMOTIVE   WORKS. 

Supreme  Court  of  the  United  States.     1876. 
[Reported  93  United  States,  664.] 

The  Rhode  Island  Locomotive  Works  sold  to  Conant  &  Co.  a  loco- 
motive, title  to  remain  in  the  seller  till  full  payment  of  the  purchase 
price.  The  locomotive  was  delivered  to  Conant  &  Co.  in  Rhode  Island, 
and  was  by  them  taken  to  Illinois.  The  agreement  of  sale  was  not  re- 
corded in  Illinois  according  to  the  law  of  that  State.  The  locomotive 
was  seized  by  a  sheriff  in  Illinois  as  the  property  of  Conant  &  Co.,  and 
was  sold  by  him  to  Hervey.  The  Locomotive  Woiks  brought  an  action 
of  replevin  in  the  Circuit  Court  of  the  United  States  for  Southern  Illi- 
nois, to  recover  possession  of  the  locomotive  from  Hervey.  The  court 
gave  judgment  for  the  plaintiff,  and  the  defendant  brought  this  writ  of 
error.  ^ 

Davis,  J.  It  was  decided  by  this  court,  in  Green  v.  Van  Buskirk, 
5  Wall.  307,  7  Wall.  139,  that  the  liability  of  property  to  be  sold  under 
legal  process,  issuing  from  the  courts  of  the  State  where  it  is  situated, 
must  be  determined  by  the  law  there,  rather  than  that  of  the  jurisdic- 
tion where  the  owner  lives.  These  decisions  rest  on  the  ground  that 
every  State  has  the  right  to  regulate  the  transfer  of  property  within  its 
limits,  and  that  whoever  sends  property  to  it  impliedly  submits  to  the 
regulations  concerning  its  transfer  in  force  there,  although  a  different 
rule  of  transfer  prevails  in  the  jurisdiction  where  he  resides.  He  has 
no  absolute  right  to  have  the  transfer  of  property,  lawful  in  that  juris- 
diction, respected  in  the  courts  of  the  State  where  it  is  found,  and  it  is 
only  on  a  principle  of  comity  that  it  is  ever  allowed.  But  this  principle 
yields  when  the  laws  and  policy  of  the  latter  State  conflict  with  those 
of  the  former. 

The  policy  of  the  law  in  Illinois  will  not  permit  the  owner  of  personal 
property  to  sell  it,  either  absolutely  or  conditionally,  and  still  continue 
in  possession  of  it.     Possession  is  one  of  the  strongest  evidences  of 

1  Ace.  Ames  Iron  Works  v.  Warren,  76  Ind.  512  ;  Keller  v.  Paine,  107  N.  Y.  83,  13 
N.  E.  635.  — En. 

2  This  statement  is  condensed  from  ili;it  of  the  Reporter.     Arguments  of  counsel 


bKCr.  Ill.j       HEEVEY    V.    RHODE    ISLAND    LOCOMOTIVE   WORKS.  167 

title  to  this  class  of  propert}-,  and  cannot  be  rightfully  separated  from  the 
title,  except  in  the  manner  pointed  out  by  statute.  The  courts  of  Illi- 
nois say  that  to  suffer  without  notice  to  the  world  the  real  ownership  to 
be  in  one  person,  and  the  ostensible  ownership  in  another,  gives  a  false 
credit  to  the  latter,  and  in  this  way  works  an  injury  to  third  persons. 
Accordingly,  the  actual  owner  of  personal  property  creating  an  interest 
in  another,  to  whom  it  is  delivered,  if  desirous  of  preserving  a  lien  on 
it,  must  comply  with  the  provisions  of  the  Ciuittel-Mortgage  Act.  R.  S. 
111.  1874,  711,  712.  It  requires  that  the  instrument  of  conveyance,  if 
it  have  the  effect  to  presei-ve  a  mortgage  or  lien  on  the  property,  must 
be  recorded,  whether  the  party  to  it  be  a  resident  or  non-resident  of 
the  State.  If  this  be  not  done,  the  instrument,  so  far  as  third  persons 
are  concerned,  has  no  validity. 

Secret  liens  which  treat  the  vendor  of  personal  property,  who  has 
delivered  possession  of  it  to  the  purchaser,  as  the  owner  until  the  pay- 
ment of  the  purchase-monej-,  cannot  be  maintained  in  Illinois.  They 
are  held  to  be  constructivelj-  fraudulent  as  to  creditors,  and  the  prop- 
erty, so  far  as  their  rights  are  concerned,  is  considered  as  belonging  to 
the  purchaser  holding  the  possession.  McCormick  v.  Hadden,  37  111. 
;j7();  Ketchum  v.  Watson,  24  111.  591.  jS^or  is  the  transaction  changed 
by  the  agreement  assuming  the  form  of  a  lease.  In  determining  the 
real  character  of  a  contract,  courts  always  look  to  its  purpose,  rather 
than  to  the  name  given  to  it  by  the  parties.  If  that  purpose  be  to  give 
the  vendor  a  lien  on  the  property  until  payment  in  full  of  the  purchase- 
money,  it  is  liable  to  be  defeated  by  creditors  of  the  purchaser  who  is 
in  possession  of  it.  This  was  held  in  Murch  v.  Wright,  46  111.  488. 
In  that  case  the  purchaser  took  from  the  seller  a  piano  at  the  price  of 
$700.  He  paid  $50  down,  which  was  called  rent  for  the  first  month, 
and  agreed  to  pay,  as  rent,  $50  each  month,  until  the  whole  amount 
should  be  paid,  when  he  was  to  own  the  piano.  The  court  held,  "  that 
it  was  a  mere  subterfuge  to  call  the  transaction  a  lease,"  and  that  it 
was  a  conditional  sale,  with  the  right  of  rescission  on  the  part  of  the 
vendor,  in  case  the  purchaser  should  fail  in  payment  of  his  instalments, 
—  a  contract  legal  and  valid  as  between  the  parties,  but  subjecting  the 
vendor  to  lose  his  lien  in  case  the  property,  while  in  possession  of  the 
purchaser,  should  be  levied  upon  by  his  creditors.  That  case  and 
the  one  at  bar  are  alike  in  all  essential  particulars. 

The  engine  Smyser,  the  only  subject  of  controversy  in  this  suit,  was 
sold  on  condition  that  each  and  all  of  the  instalments  should  be  regu- 
larly paid,  with  a  right  of  rescission  on  the  part  of  the  vendor  in  case 
of  default  in  any  of  the  specified  payments. 

It  is  true  the  instrument  of  conveyance  purports  to  be  a  lease,  and 
the  sums  stipulated  to  be  paid  are  for  rent ;  but  this  form  was  used  to 
cover  the  real  transaction,  as  much  so  as  was  the  rent  of  the  piano  in 
Murch  V.  Wright,  supra.  There  the  price  of  the  piano  was  to  be  paid 
in  thirteen  months,  and  here,  that  of  the  engine,  $12,09.3.90,  in  one 
year.     It  was  e\idently  not  the  intention  tliat  this  large  sum  should  bo 


168  EMERY    V.   CLOUGH.  [CHAP.  VIL 

paid  as  rent  for  the  mere  use  of  the  engine  for  one  year.  If  so,  why 
agree  to  sell  and  convey  the  full  title  on  the  payment  of  the  last  instal- 
ment? In  both  cases,  the  stipulated  price  of  the  property  was  to  be 
paid  in  short  instalments,  and  no  words  employed  by  the  parties  can 
have  the  effect  of  changing  the  true  nature  of  the  contracts.  In  the 
case  at  bar  the  agreement  contemplated  that  the  engine  should  be 
removed  to  the  State  of  Illinois,  and  used  b}-  Conant  &  Co.  in  the  pros- 
ecution of  their  business  as  constructors  of  a  railroad.  It  was  accord- 
ingly taken  there  and  put  to  the  use  for  which  it  was  purchased,-  but 
while  in  the  possession  of  Conant  &  Co.,  who  exercised  complete  own- 
ership over  it,  it  was  seized  and  sold,  in  the  local  courts  of  Illinois,  as 
their  property".  These  proceedings  were  valid  in  the  jurisdiction  where 
the}'  took  place,  and  must  be  respected  b}-  the  Federal  tribunals. 

The  Rhode  Island  Locomotive  Works  took  the  risk  of  losing  its  lien 
in  case  the  property,  while  in  the  possession  of  Conant  &  Co.,  should 
be  levied  on  by  their  creditors,  and  it  cannot  complain,  as  the  laws  of 
Illinois  pointed  out  a  wa}-  to  preserve  and  perfect  its  lien. 

By  stipulation  the  judgment  of  the  court  below  is  affirmed  as  to  the 
locomotive  Olney,  No.  1. 

As  to  the  locomotive  and  tender  called  Alfred  N.  Smyser,  No  3, 

Judgment  reversed} 


EMERY  V.  CLOUGH. 
Supreme  Court  of  New  Hampshire.     1885. 

[Reported  63  New  Hampshire,  5.52.] 

Bill  in  equity,  under  General  Laws,  c.  209,  §  2,  for  discovery,  and 
the  restoration  of  a  municipal  bond  for  $1,000,  alleged  to  belong  to  the 
estate  of  William  Emery,  the  plaintifTs  intestate,  unlawfully  withheld 
by  the  defendant.^  .  .  . 

The  legal  domicil  of  said  William  Emery  during  his  whole  life  was 
at  Loudon,  in  this  State.  May  21,  1882,  being  very  sick  while  tempo- 
rarily at  Montpelier,  Vt.,  he  delivered  to  the  defendant  as  a  donatio 
causa  mortis,  the  bond  in  question. 

Smith,  J.  It  is  contended  on  the  part  of  the  defendant  that  the 
transaction  in  Vermont,  whereby  the  defendant  became  possessed  of 
the  bond,  was  a  donatio  causa  mortis^  valid  as  an  executed  contract 
under  the  laws  of  Vermont,  and  therefore  valid  here.  The  plaintiff 
contends  that  the  transaction  was  in  the  nature  of  a  testamentaiy  dis- 
position of  property,   and   if  valid  in  Vermont  as   a  donatio    causa 

i  Ace.  Marsh  v.  Ellsworth,  37  Ala.  85;  Delop  v.  Windsor,  26  La.  Ann  185;  and 
see  Donald  v.  Hewitt,  33  Ala.  534. 

-  Only  so  much  of  the  case  as  involves  the  validity  of  the  gift  of  this  bond  is  here 
given. —  Ed. 


SECT.  III.]  EMERY   V.   CLOUGH.  169 

mortis,  it  is  not  valid  iu  tliis  State  because  it  was  not  proved  by  the 
testimoin-  of  two  indifferent  witnesses  upon  petition  by  the  donee  to 
the  Probate  Court  to  establish  the  gift  filed  within  sixty  days  after  the 
decease  of  the  donor.  G.  L.,  c.  193,  §  17.  The  domicil  of  the  parties 
at  the  time  of  the  delivery  of  the  bond  to  the  defendant,  and  ever 
afterwards,  to  the  death  of  the  donor,  being  in  this  State,  it  is  claimed 
that  the  neglect  of  the  defendant  to  establish  the  gift  in  the  Probate 
Court  is  fatal  to  her  right  to  retain  the  bond.  Every  requisite  to  con- 
stitute a  valid  gift  causa  mortis  under  the  laws  of  Vermont,  where  the 
parties  were  temporarily  residing  at  the  time  of  the  delivery  of  the 
bond,  was  complied  with.  Holley  v.  Adams,  16  Vt.  206;  Caldwell  v. 
Renfrew,  33  Vt.  213  ;  French  v.  Raymond,  39  Vt.  623.  Every  requis- 
ite, also,  to  constitute  such  a  gift  under  the  laws  of  New  Hampshire 
was  complied  with  except  the  post  mortem  proceedings  required  by  our 
statute.  The  question  therefore  is,  whether  the  lex  loci  or  the  lex 
domicilii  governs  ;  and  the  answer  to  this  question  depends  upon  the 
legal  character  and  effect  of  such  gifts. 

A  gift  causa  mortis  is  often  spoken  of  in  the  books  as  a  testamen- 
tary disposition  of  property,  or  as  being  in  the  nature  of  a  legacy- 
Jones  V.  Brown,  34  N.  H.  439  ;  1  Wms.  Ex'rs,  686,  n.  1.  And  such 
was  the  doctrine  of  the  civil  law.  2  Kent  Com.  444,  and  authorities 
cited  in  note  b.  Such  gifts  are  alwa^'s  made  upon  condition  that  they 
shall  be  revocable  during  the  lifetime  of  the  donor,  and  that  they  shall 
'revest  in  case  he  shall  survive  the  donee,  or  shall  be  delivered  from  the 
peril  of  death  in  which  they  were  made.  The  condition  need  not  be 
expressed,  as  it  is  always  implied  when  the  gift  is  made  in  the  extrem- 
ity of  sickness,  or  in  contemplation  of  death.  It  is  sometimes,  perhaps 
generally,  said  in  the  English  cases  that  a  gift  causa  mortis  does  not 
vest  before  the  donor's  death  ;  but  in  Nicholas  v.  Adams,  2  Whart. 
(Pa.)  17,  Gibson,  C.  J.,  considered  this  to  be  inaccurate,  holding  that 
this  gift,  like  every  other,  is  not  executory,  but  executed  in  the  first 
instance  by  delivery  of  the  thing,  though  defeasible  by  reclamation,  the 
contingency  of  survivorship,  deliverance  from  peril,  or  from  some  other 
act  inconsistent  with  the  gift,  and  indicating  the  donor's  purpose  to 
resume  the  possession  of  the  gift.  1  Wms.  Ex'rs,  686,  n.  1  ;  Marshall 
V.  Berry,  13  Allen,  43,  46. 

A  gift  causa  mortis  resembles  a  testamentary  disposition  of  property 
in  this, — that  it  is  made  in  contemplation  of  death,  and  is  revocable 
during  the  life  of  the  donor.  It  is  not,  however,  a  testament,  but  in 
its  essential  characteristics  is,  what  its  name  indicates,  a  gift.  Actual 
delivery  b}-  the  donor  in  his  lifetime  is  necessary  to  its  validity,  or  if 
the  nature  of  the  property  is  such  that  it  is  not  susceptible  of  corporeal 
delivery,  the  means  of  obtaining  possession  of  it  must  be  delivered. 
The  donee's  possession  must  continue  during  the  life  of  the  donor,  for 
recovery  of  possession  by  the  latter  is  a  revocation  of  the  gift.  But  in 
case  of  a  legacy,  the  possession  remains  with  the  testator  until  his 
decease.      The  title  to  a  gift  causa  m,ortis  passes  by  the  delivery, 


170  EMEKY    V.    CLOUGH.  [CHAP.  VII. 

defeasible  only  in  the  lifetime  of  the  donor,  and  his  death  perfects  the 
title  in  the  donee  by  terminating  the  donor's  right  or  power  of  defeas- 
ance. The  property  passes  from  the  donor  to  the  donee  directly- ,  and 
not  through  the  executor  or  administrator,  and  after  his  death  it  is 
liable  to  be  divested  only  in  favor  of  the  donor's  creditors.  In  this 
respect  it  stands  the  same  as  a  gift  inter  viros.  It  is  defeasible  in 
favor  of  creditors,  not  because  it  is  testamentary,  but  because,  as 
against  creditors,  one  cannot  give  away  his  property.  A  gift  causa 
mortis  is  not  subject  to  probate,  nor  to  contribution  with  legacies  in 
case  the  assets  are  insufficient,  nor  to  any  of  the  incidents  of  adminis- 
tration. It  is  not  revocable  by  will,  for,  as  a  will  does  not  operate 
until  the  decease  of  the  testator,  and  the  donor,  at  his  decease,  is 
divested  of  his  property  in  the  subject  of  the  gift,  no  right  or  title  in  it 
passes  to  his  representatives.  Tiie  donee  takes  the  gift,  not  from  the 
administrator,  but  against  him,  and  no  act  or  assent  on  the  part  of  the 
administrator  is  necessary  to  perfect  the  title  of  the  donee.  Cutting  v. 
Gilman,  41  N.  H.  117,  151  ;  Marshall  v.  Berry,  supra;  Dot}'  v.  Will- 
son,  47  N.  Y.  580,  585  ;  Dole  v.  Lincoln,  31  Me.  422  ;  Chase  v.  Red- 
ding, 13  Gray,  418  ;  Basket  v.  Hassell,  107  U.  S.  602  ;  1  Wms.  Ex'rs, 
686,  n.  1.  A  valid  gift  inter  vivos  may  be  made  on  similar  terms. 
Worth  V.  Case,  42  N.  Y.  362;  Dean  v.  Carruth,  108  Mass.  242; 
Warren  v.  Durfee,    126  Mass.  388. 

A  gift  causa  mortis  in  some  respects  may  be  said  to  resemble  a  con- 
tract, the  mutual  consent  and  concurrent  will  of  both  parties  being 
necessary  to  the  validity  of  the  transfer.  2  Kent  Com.  437,  438; 
1  Pars.  Cont.  234.  Contracts  are  commonh'  understood  to  mean  en- 
gagements resulting  from  negotiation.  2  Kent.  Cora.  437.  And  in 
Peirce  v.  Burroughs,  58  N.  H.  302,  it  was  held  that  the  assent  of  both 
parties  is  as  necessary  to  a  gift  as  to  a  contract. 

Prior  to  the  passage  of  c.  106,  Laws  of  1883,  the  law  required  a  will 
to  be  executed  according  to  the  law  of  the  testator's  domicil  at  the 
time  of  his  death.  Saunders  v.  Williams,  5  N.  H.  213  ;  Heydock's  Ap- 
peal, 7  N.  H.  496.  The  distribution  of  the  estate  of  a  deceased  person 
among  the  heirs  or  legatees  is  to  be  made  according  to  the  law  of  the 
domicil  of  the  testator  or  intestate  at  the  time  of  his  death.  Leach  r. 
Pillsbury,  15  N.  H.  137.  But  the  plaintiff's  intestate  did  not  die  pos- 
sessed of  the  bond  in  suit.  It  did  not  vest  in  his  administrator,  and 
is  not  assets  of  his  estate.  The  defeasible  title  which  vested  in  the 
defendant  at  the  time  of  the  delivery  was  not  defeated  bj'  the  donor  in 
liis  lifetime,  and  his  right  and  power  to  defeat  it  ceased  with  his  death. 
A  gift  causa  mortis  is  not  a  testament.  If  it  is  a  contract,  in  this  case 
it  was  executed  in  Vermont  in  the  life  of  the  plaintiff's  intestate.  If  it 
is  not  a  contract,  as  that  term  is  commonly  understood,  it  is  a  gift 
which  received  tlie  assent  of  both  parties,  and  nothing  remained  to  per- 
fect the  conditional  title  of  the  defendant  before  the  decease  of  the 
donor.  The  transfer  of  tlie  bond  being,  therefore,  either  an  executed 
contract  or  a  perfected  gift  in  Vermont,  and  valid  under  the  laws  of 


SECT.  III.]  MAKVIX    SAFE    CO.    V.   NORTON.  171 

Vermont,  is  valid  here ;  and  no  question  arises  whether  our  statute 
(G.  L.,  c.  193,  §  17)  aft'eets  the  contract  or  the  remedy.  That  section 
applies  to  gifts  made  in  this  State.  Case  discharged. 


MARVIN   SAFE   COMPANY  v.   NORTON. 

Supreme  Court  of  New  Jersey.     1886. 

[Reported  48  New  Jersey  Law,  410.] 

On  Ma}-  1,  1884,  one  Samuel  N.  Schwartz,  of  Hightstown,  Mercer 
county,  New  Jersey,  went  to  Philadelphia,  Pennsylvania,  and  there,  in 
the  office  of  the  prosecutors,  executed  the  following  instrument :  — 

"  May  1st,  1884. 
'•'■Marvin  Safe  Company: 

"  Please  send,  as  per  mark  given  below,  one  second-hand  safe,  for 
which  the  undersigned  agrees  to  pa}^  the  sum  of  eight^'-four  dollars 
($84),  seven  dollars  cash,  and  balance  seven  dollars  per  month. 
Terms  cash,  delivered  on  board  at  Philadelphia  or  New  York,  unless 
otherwise  stated  in  writing.  It  is  agreed  that  Marvin  Safe  Company 
shall  not  relinquish  its  title  to  said  safe,  but  shall  remain  the  sole 
owners  thereof  until  above  sum  is  fully  paid  in  money.  In  event  of 
failure  to  pa}-  any  of  said  instalments  or  notes,  when  same  shall  become 
due,  then  all  of  said  instalments  or  notes  remaining  unpaid  shall  imme- 
diatel}'  become  due.  The  Marvin  Safe  Company  may,  at  their  option, 
remove  said  safe  without  legal  process.  It  is  expressly  understood 
that  there  are  no  conditions  whatever  not  stated  in  this  memorandum, 
and  the  undersigned  agrees  to  accept  and  pay  for  safe  in  accordance 
there witli.  Samuel  N.  Schwartz. 

"  Mark  —  Samuel  N.  Schwartz,,  Hightstown,  New  Jersey. 

"  Route  —  New  Jersey. 

"Not  accountable  for  damages  after  shipment." 

Schwartz  paid  the  first  instalment  of  $7  May  1,  1884,  and  the  safe 
was  shipped  to  him  the  same  da}'.  He  afterwards  paid  two  instalments, 
of  %1  each,  by  remittance  to  Philadeli)Liia  by  check.  Nothing  more 
was  paid. 

On  July  30,  1884,  Schwartz  sold  and  delivered  the  safe  to  Norton 
for  $55.  Norton  paid  him  the  purchase-money.  He  bought  and  paid 
for  the  safe  without  notice  of  Schwartz's  agreement  with  the  prosecu- 
tors. Norton  took  possession  of  the  safe  and  removed  it  to  his  office. 
Schwartz  is  insolvent  and  has  absconded. 

The  prosecutor  brought  trover  against  Norton,  and  in  the  court  be- 
low the  defendant  recovered  judgment,  on  the  ground  that  the  defendant, 
(laving  bought  and  paid  for  the  safe  bona  fido^  the  title  to  the  safe,  by 
the  law  of  Pennsylvania,  was  transferred  to  him. 


172  MARVIN    SAFE    CO.    V.    NORTON  [CHAP.  VII. 

Depue,  J.  The  contract  expressed  in  the  written  order  of  May  1, 
1884,  signed  b}-  Schwartz,  is  for  the  sale  of  the  property-  to  him  condi- 
tionally, the  vendor  reserving  the  title,  notwithstanding  deliver}-,  until 
the  contract  price  should  be  paid.  The  courts  of  Pennsylvania  make  a 
distinction  between  the  bailment  of  a  chattel,  with  power  in  the  bailee 
to  become  the  owner  on  payment  of  the  price  agreed  upon,  and  the 
sale  of  a  chattel  with  a  stipulation  that  the  title  shall  not  pass  to  the 
purchaser  until  the  contract  price  shall  be  paid.  On  this  distinction 
the  courts  of  that  State  hold  that  a  bailment  of  chattels,  with  an  option 
in  the  bailee  to  become  the  owner  on  payment  of  the  price  agreed  upon, 
is  valid,  and  that  the  right  of  the  bailor  to  resume  possession  on  non- 
payment of  the  contract  price  is  secure  against  creditors  of  the  bailee 
and  bonajide  purchasers  from  him  ;  but  that  upon  the  delivery  of  per- 
sonal property  to  a  purchaser  under  a  contract  of  sale,  the  reservation 
of  title  in  the  vendor  until  the  contract  price  is  paid  is  void  as  against 
creditors  of  the  purchaser  or  a  bona  fide  purchaser  from  him.  Clow  v. 
Woods,  5  S.  &  R.  275  ;  Enlow  v.  Klein,  79  Penn.  St.  488  ;  Haak  v. 
Linderman,  64  Penn.  St.  499  ;  Stadfeld  v.  Huntsman,  92  Penn.  St.  53  ; 
Brunswick  V.  Hoover,  95  Penn.  St.  508;  1  Benj.  on  Sales  (Corbin's  ed.), 
§  446  ;  30  Am.  Law  Reg.  224,  note  to  Lewis  v.  McCabe. 

In  the  most  recent  case  in  the  Supreme  Court  of  Pennsylvania  Mr. 
Justice  Sterrett  said  :  "■  A  present  sale  and  deliver}'  of  personal  prop- 
erty to  the  vendee,  coupled  with  an  agreement  that  the  title  shall  not 
vest  in  the  latter  unless  he  pa3-s  the  price  agreed  upon  at  the  time  ap- 
pointed therefor,  and  that  in  default  of  such  payment  the  vendor  may 
recover  possession  of  the  property,  is  quite  different  in  its  effect  from 
a  bailment  for  use,  or,  as  it  is  sometimes  called,  a  lease  of  the  property, 
coupled  with  an  agreement  whereb}*  the  lessee  may  subsequentl}'  be- 
come owner  of  the  propert}'  upon  payment  of  a  price  agreed  upon. 
As  between  the  parties  to  such  contracts,  both  are  valid  and  binding ; 
but  as  to  creditors,  the  latter  is  good  while  the  former  is  invalid." 
Forest  v.  Nelson.  19  Rep.  38  ;   108  Penn.  St.  481. 

The  cases  cited  show  that  the  Pennsylvania  courts  hold  the  same 
doctrine  with  respect  to  bona  fide  purchasers  as  to  creditors. 

In  this  State,  and  in  neai-ly  all  of  our  sister  States,  conditional  sales  — 
that  is,  sales  of  personal  property  on  credit,  with  delivery  of  possession 
to  the  purchaser  and  a  stipulation  that  the  title  shall  remain  in  the 
vendor  until  the  contract  price  is  paid  —  have  l)een  held  valid,  not  onl}' 
against  the  immediate  purchaser,  but  also  against  his  creditors  and 
bona  fide  purchasers  from  him,  unless  the  vendor  has  conferred  upon 
his  vendee  indicia  of  title  beyond  mere  possession,  or  has  forfeited  iiis 
right  in  the  proi>ert3-  by  conduct  which  the  law  regards  as  fraudulent. 
The  cases  are  cited  in  Cole  v.  Berry,  13  Vroom,  308  ;  Midland  R.  R. 
Co.  V.  Hitchcock,  10  Stew.  Eq.  549,  559  ;  1  Benj.  on  Sales  (Corbin's 
ed.),  §§  437-460;  1  Smith's  Lead.  Cas.  f8th  ed.)  33-90;  30  Am.  Law 
Reg.  224,  note  to  Lewis  i'.  INIcCabe  ;  15  Am.  Law  Rev.  380,  tit.  "  Con- 
version I)}-  Purchase."     The  doctrine  of  the  courts  of  Pennsj'lvania  is 


SECT.  III.]  MARVIN    SAFE    CO.    V.   NORTON.  173 

founded  upon  the  doctrine  of  Twj-ne's  Case,  3  Rep.  80,  and  Edwards 
V.  Harbin,  2  T.  R.  587,  that  the  possession  of  chattels  under  a  contract 
of  sale  without  title  is  an  indelible  badge  of  fraud  —  a  aoctrine  repu- 
diated quite  generally-  by  the  courts  of  this  countr}-,  and  especially  in 
this  State.  Runyon  v.  Groshon,  1  Beas.  86;  Broadway  Bank  v. 
McElrath,  2  Beas.  24 ;  Miller  ads.  Pancoast,  5  Dutch.  250.  The  doc- 
trine of  the  Pennsylvania  courts  is  disapproved  by  the  American 
editors  of  Smith's  Leading  Cases  in  the  note  to  Twyne's  Case,  1  Sm. 
Lead  Cas.  (8th  ed.)  33,  34,  and  by  Mr.  Landreth  in  his  note  to  Lewis 
V.  McCabe,  30  Am.  Law  Reg.  224;  but  nevertheless  the  Supreme 
Court  of  that  State,  in  the  latest  case  on  the  subject  —  Forest  v.  Nel- 
son, decided  February  16,  1885  —  has  adhered  to  the  doctrine.  It  must 
therefore  be  regarded  as  the  law  of  Pennsylvania  that  upon  a  sale  of 
personal  property  with  deliver}-  of  possession  to  the  purchaser,  an 
agreement  that  title  should  not  pass  until  the  contract  price  should  be 
paid  is  valid  as  between  the  original  parties,  but  that  creditors  of  the 
purchaser,  or  a  purchaser  from  him  bona  fide,  b}'  a  levy  under  execu- 
tion or  a  hona  fide  purchase,  will  acquire  a  better  title  than  the  original 
purchaser  had  —  a  title  superior  to  that  reserved  bj'  his  vendor.  So 
far  as  the  law  of  Pennsylvania  is  applicable  to  the  transaction  it  must 
determine  the  rights  of  these  parties. 

The  contract  of  sale  between  the  Marvin  Safe  Company  and  Schwartz 
was  made  at  the  company's  office  in  Philadelphia.  The  contract  con- 
templated performance  by  the  delivery  of  the  safe  in  Philadelphia  to 
the  carrier  for  transportation  to  Hightstown.  "When  the  terms  of  sale 
are  agreed  upon,  and  the  vendor  has  done  everything  that  he  has  to 
do  with  the  goods,  the  contract  of  sale  becomes  absolute.  Leonard  v. 
Davis,  1  Black,  476  ;  1  Benj.  on  Sales,  §  308.  Delivery  of  the  safe  to 
the  carrier  in  pursuance  of  the  contract  was  deliver}'  to  Schwartz,  and 
was  the  execution  of  the  contract  of  sale.  His  title,  such  as  it  was, 
under  the  terms  of  the  contract  was  thereupon  complete. 

The  validity,  construction,  and  legal  effect  of  a  contract  may  depend 
either  upon  the  law  of  the  place  where  it  is  made  or  of  the  place  where 
it  is  to  be  performed,  or,  if  it  relate  to  movable  property,  upon  the  law 
of  the  situs  of  the  propert}',  according  to  circumstances  ;  but  when  the 
place  where  the  contract  is  made  is  also  the  place  of  performance  and 
of  the  situs  of  the  property,  the  law  of  that  place  enters  into  and  be- 
comes part  of  the  contract,  and  determines  the  rights  of  the  parties  to 
it.  Fredericks  v.  Frazier,  4  Zab.  162  ;  Dacosta  v.  Davis,  4  Zab.  319  ; 
Bulkley  v.  Honold,  19  How.  390  ;  Scudder  v.  Union  National  Bank,  91 
U.  S.  406;  Pritchard  /'.  Norton,  106  U.  S.  124;  Morgan  v.  N.  O., 
M.  «&;T.  R.  R.  Co.,  2  Woods,  244;  Simpson  v.  Fogo,  9  Jur.  (n.  s.) 
403  ;  Whart.  Confl.  of  Law,  §§  341,  345,  401,  403,  418  ;  Parr  y.  Brady, 
8  Vroom,  201.  The  contract  between  Schwartz  and  the  compan}-  hav- 
ing been  made,  and  also  executed  in  Pennsylvania  by  the  delivery  of 
the  safe  to  him,  as  between  him  and  the  company  Schwartz's  title  will 
be  determined  b}'  the  law  of  Pennsylvania.     B}'  the  law  of  that  State 


174  MARVIN    SAFE    CO.    V.   NORTON.  [cHAP.  VII. 

the  condition  expressed  in  the  contract  of  sale  that  the  safe  company 
should  not  relinquish  title  until  the  contract  price  was  paid,  and  thai 
on  the  failure  to  pa}^  any  of  the  instalments  of  the  price  the  company 
might  resume  possession  of  the  property,  was  valid  as  between  Schwartz 
and  the  company.  By  his  contract  Schwartz  obtained  possession  of  the 
safe  and  a  right  to  acquire  title  on  payment  of  the  contract  price  :  bul 
until  that  condition  was  performed  the  title  was  iu  tiie  company.  In 
this  situation  of  affairs  the  safe  was  brought  into  this  State,  and  the 
property  became  subject  to  our  laws. 

The  contract  of  Norton,  the  defendant,  with  Schwartz  for  the  pur- 
chase of  the  safe  was  made  at  Hightstown  in  this  State.  The  property 
was  then  in  this  State,  and  the  contract  of  purchase  was  executed  by 
delivery  of  possession  in  this  State.  The  contract  of  purchase,  the 
domicii  of  the  parties  to  it,  and  the  situs  of  the  subject-matter  of  pur- 
chase were  all  within  this  State.  In  every  respect  the  transaction  be- 
tween Norton  and  Schwartz  was  a  New  Jersey  transaction.  Under 
these  circumstances,  by  principles  of  law  which  are  indisputable,  the 
construction  and  legal  effect  of  the  contract  of  purchase,  and  the  rights 
of  the  purchaser  under  it,  are  determined  by  the  law  of  this  State.  By 
the  law  of  this  State  Norton,  by  his  purchase,  acquired  only  the  title  of 
his  vendor,  —  only  such  title  as  the  vendor  had  when  the  property  was 
brought  into  this  State  and  became  subject  to  our  laws. 

It  is  insisted  that  inasmuch  as  Norton's  purchase,  if  made  in  Penn- 
sylvania, would  have  given  him  a  title  superior  to  that  of  the  safe 
company,  that  therefore  his  purchase  here  should  have  that  eflfect,  on 
the  theory  that  the  law  of  Pennsylvania,  which  subjected  the  title  of 
the  safe  company  to  the  rights  of  a  bona  fide  purchaser  from  Schwartz, 
was  part  of  the  contract  between  the  company  and  Schwartz.  There 
is  no  provision  in  the  contract  between  the  safe  company  and  Schwartz 
that  he  should  have  power,  under  any  circumstances,  to  sell  and  make 
title  to  a  purchaser.  Schwartz's  disposition  of  the  property  was  not  in 
conformity  with  his  contract,  but  in  violation  of  it.  His  contract,  as 
construed  by  the  laws  of  Pennsylvania,  gave  him  no  title  which  he 
could  lawfully  convey.  To  maintain  title  against  the  safe  company 
Norton  must  build  up  in  himself  a  better  title  than  Schwartz  had.  He 
can  accomplish  that  result  only  by  virtue  of  the  law  of  tlie  jurisdiction 
in  which  he  acquired  his  rights. 

The  doctrine  of  the  Pennsylvania  courts  that  a  reservation  of  title  in 
the  vendor  upon  a  conditional  sale  is  void  as  against  creditors  and  bona 
fide  purchasers,  is  not  a  rule  affixing  a  certain  construction  and  legal 
effect  to  a  contract  made  in  tliat  State.  The  legal  effect  of  such  a  con- 
tract is  conceded  to  be  to  leave  property  in  the  vendor.  The  law  acts 
upon  the  fact  of  possession  by  the  purchaser  under  such  an  arrange- 
ment, and  makes  it  an  indelible  badge  of  fraud  and  a  forfeiture  of  the 
vendor's  reserved  title  as  in  favor  of  creditors  and  bona  fide  purchasers. 
The  doctrine  is  founded  upon  considerations  of  public  policy  adopted 
in  that  State,  and  applies  to  the  fact  of  possession  and  acts  of  owner- 


SECT.  III.]  MARVIN    SAFE    CO.    V.    NOKTOX.  175 

ship  under  such  a  contract,  without  regard  to  the  place  where  the  con- 
tract was  made,  or  its  legal  effect  considered  as  a  contract.  In  McCabe 
r.  Bhmvrv,  9  Phila.  Rep.  615,  the  controversy  was  with  respect  to  the 
rights  of  a.  mortgagee  under  a  chattel  mortgage.  The  mortgage  had 
been  made  and  recorded  in  Maryland,  where  the  chattel  was  when  the 
mortgage  was  given,  and  by  the  law  of  Maryland  was  valid  though  the 
mortgagor  retained  possession.  The  chattel  was  afterwards  brought 
into  Pennsylvania,  and  the  Pennsylvania  court  held  tliat  tlie  mortgage, 
though  valid  in  the  State  where  it  was  made,  would  not  be  enforced  by 
the  courts  of  Pennsylvania  as  against  a  creditor  or  purchaser  who  had 
acquired  rights  in  the  property  after  it  had  been  brouglit  to  that  State  ; 
that  the  mortgagee,  by  allowing  the  mortgagor  to  retain  possession  of 
the  property  and  bring  it  into  Pennsylvania,  and  exercise  notorious 
acts  of  ownership,  lost  his  right  under  the  mortgage  as  against  an  in- 
tervening Pennsylvania  creditor  or  purchaser,  on  the  ground  that  the 
contract  was  in  contravention  of  the  law  and  policy  of  that  State. 
Under  substantially  the  same  state  of  facts  this  court  sustained  tlie  title 
of  a  mortgagee  under  a  mortgage  made  in  another  State,  as  against  a 
bona  fide  purchaser  who  had  bought  the  property  of  the  mortgagor  in 
this  State,  for  the  reason  that  the  possession  of  the  chattel  by  the  mort- 
gagor was  not  in  contravention  of  the  public  policy  of  this  State.  Parr 
V.  Brady,  8  Yroom,  201. 

The  public  policy  which  has  given  rise  to  the  doctrine  of  the  Penn- 
sylvania courts  is  local,  and  the  law  which  gives  effect  to  it  is  also 
local,  and  has  no  extraterritorial  effect.  In  the  case  in  hand  the  safe 
was  removed  to  this  State  by  Schwartz  as  soon  as  he  became  the  pur- 
chaser. His  possession  under  the  contract  lias  been  exclusively  in  tliis 
State.  That  possession  violated  no  public  policy,  —  not  tlic  [)ublic 
policy  of  Pennsylvania,  for  the  possession  was  not  in  that  State;  nor 
tlie  public  policy  of  this  State,  for  in  this  State  possession  under  a  con- 
ditional sale  is  regarded  as  lawful,  and  does  not  invalidate  the  vendor's 
title  unless  impeached  for  actual  fraud.  If  the  riglit  of  a  purcliaser, 
under  a  purchase  in  this  State,  to  avoid  the  reserved  title  in  the  origi- 
nal vendor  on  such  grounds  be  conceded,  the  same  right  must  be  ex- 
tended to  creditors  buying  under  a  judgment  and  execution  in  this 
State;  for,  by  the  law  of  Pennsylvania,  creditors  and  bona  fide  pur- 
chasers are  put  upon  the  same  footing.  Neither  on  principle  nor  on 
considerations  of  convenience  or  public  policy  can  such  a  right  be  con- 
ceded. Under  such  a  condition  of  the  law  confusion  and  uncertainty 
in  the  title  to  property  would  be  introduced,  and  the  transmission  of 
the  title  to  movable  property,  the  situs  of  which  is  in  this  State,  would 
depend,  not  upon  our  laws,  but  upon  the  laws  and  public  policy  of  sister 
States  or  foreign  countries.  A  purchaser  of  chattels  in  this  State, 
wliich  his  vendor  had  obtained  in  New  York  or  in  most  of  our  sister 
States  under  a  contract  of  conditional  sale,  would  take  no  title  ;  if  ob- 
tained under  a  conditional  .sale  in  Pennsylvania,  his  title  would  be 
good  ;  and  the  same  uncertainty  would  exist  in  the  title  of  purchasers 
of  property  so  circumstanced  at  a  sale  under  judgment  and  execution. 


176  CLEVELAND    MACHINE   WOKKS   V.   LANG.  [CHAP.  VIL 

The  title  was  in  tlie  safe  company  when  the  propert}-  in  dispute  was 
removed  from  the  State  of  Pennsylvania.  Whatever  might  impair  that 
title  —  the  continued  possession  and  exercise-  of  acts  of  ownership  over 
it  by  Schwartz  and  the  purchase  by  Norton  —  occurred  in  this  State. 
The  legal  effect  and  consequences  of  those  acts  must  be  adjudged  by 
the  law  of  this  State.  By  the  law  of  this  State  it  was  not  illegal  nor 
contrary  to  public  polic}-  for  the  company  to  leave  Schwartz  in  posses- 
sion as  ostensible  owner,  and  no  forfeiture  of  the  company's  title  could 
result  therefrom.  By  the  law  of  this  State  Norton,  by  his  purchase, 
acquired  only  such  title  as  Schwartz  had  under  his  contract  with  the 
company.  Nothing  has  occurred  which,  by  our  law,  will  give  him  a 
better  title.  The  judgment  should  be  reversed.^ 


CLEVELAND  MACHINE  WORKS    v.   LANG. 
Supreme  Court  of  New  Hampshire.     1892. 

{Reported  67  New  Hamsphire,  348.] 

Replevin  for  two  machines  situate  in  the  Granite  Mills  in  North- 
field,  and  attached  as  both  real  and  personal  estate  by  the  defendant, 
a  deputy  sheriff,  on  a  writ  in  favor  of  Denny,  Rice  &  Co.  against  Ed- 
ward P.  Parsons.  The  negotiations  for  the  machines  were  had  and 
completed  with  the  plaintiffs  in  Worcester,  Mass.,  by  one  Green,  as 
agent  for  Parsons,  who  resided  in  Boston.  The  machines  were  shipped 
by  the  plaintiff  from  Worcester  to  Northfield,  and  were  there  set  up  by 
an  employee  of  the  plaintiff,  under  an  agreement  by  which  the  title  to 
the  machines  was  to  remain  in  the  plaintiff  until  the  entire  price  was 
paid.  Parsons  never  paid  for  the  machines.  At  the  time  of  the  Denny, 
Rice  &  Co.  attachment  neither  they  nor  the  defendant  had  notice  of  the 
plaintiff's  lien.^ 

Clark,  J.  By  the  terms  of  the  contract  the  machines  were  to  re- 
main the  property  of  the  Cleveland  Machine  Works  until  paid  for. 
The  contract  was  negotiated  in  Massachusetts,  by  citizens  of  Massa- 
chusetts, respecting  property  situated  in  Massachusetts.  The  shipment 
of  the  machines  at  Worcester  —  Parsons  paying  the  freight  from  that 
point  — made  Worcester  the  place  of  delivery,  and  vested  in  Parsons 
all  the  right  and  interest  he  ever  acquired  in  the  property.  The  agree- 
ment to  send  a  man  to  set  up  the  machines  at  Northfield  was  not  a 
condition  precedent  to  the  vesting  of  the  conditional  title  in  Parsons, 
any  more  than  an  agreement  to  furnish  instruction  as  to  the  mode  of 
operating  the  machines  would   have  been.      The   written   agreement 

1  Ace.  Weinstein  v.  Freyer,  9.3  Ala.  257 ;  Public  Parks  Amusement  Co.  v.  Carriage 
Co.,  64  Ark.  29,  40  S.  W.  582.  —  Ed. 

2  This  statement  is  condensed  from  that  of  the  Reporter.  Arguments  of  counsel 
are  omitted.  —  Ed. 


SECT.  III.]  CLEYEL.AND   MACHINE    WORKS    V.   L.\NG.  177 

shows  that  the  parties  understood  that  the  conditional  title  passed 
upon  the  shipment  of  the  machines,  by  fixing  the  times  of  payment 
from  that  date.  The  contract  was  a  conditional  sale  of  chattels  in 
Massachusetts,  negotiated  and  completed  there  by  Massachusetts  par- 
ties, and  valid  by  the  law  of  Massachusetts  ;  and  being  valid  where 
it  was  made,  its  validity  was  not  atfected  by  the  subsequent  removal 
of  the  property  to  New  Hami)shire.  Sessions  v.  Little,  9  N.  H.  271 ; 
Smith   V.  Godfrey,  28  N.  H.  379  ;    Stevens  v.  Norris,  30  N.  H.  4G6. 

As  a  general  rule,  contracts  respecting  the  sale  or  transfer  of  per- 
sonal property,  valid  where  made  and  where  the  property  is  situated, 
will  be  upheld  and  enforced  in  anotlier  State  or  country,  although  not 
executed  according  to  the  law  of  the  latter  State,  unless  such  enforce- 
ment would  be  in  contravention  of  positive  law  and  public  interests. 
A  personal  mortgage  of  property  in  another  State,  executed  and  re- 
corded according  to  the  laws  of  that  State,  is  valid  against  the  creditors 
of  the  mortgagor  attaching  the  jn-operty  in  this  State,  although  the 
mortgage  is  not  recorded  here.  OfTutt  c.  Flagg,  10  N.  H.  46  ;  Fergu- 
son r.  Clifford,  37  N.  H.  86.  A  mortgagor  of  horses  in  Massachusetts, 
bringing  them  into  this  State,  cannot  subject  them  to  a  lien  for  their 
keeping  against  the  Massachusetts  mortgagee.  Sargent  r.  Usher,  55 
N.  H.  287.  A  boarding-house  keepers  lien  under  the  laws  of  Massa- 
chusetts is  not  lost  by  bringing  the  property  into  this  State.  Jaquith 
IK  American  Express  Co.,  60  N.  H.  61. 

Formerly  b}'  the  law  of  Vermont  a  chattel  mortgage  was  invalid 
against  creditors  of  the  mortgagor  if  the  property  remained  in  his  pos- 
session. But  it  was  held  both  in  Vermont  and  in  New  Hampshire  that 
a  mortgage  of  personal  property  in  New  Hampshire,  duly  executed  and 
recorded  according  to  the  law  of  New  Hampshire,  was  valid  against 
creditors  of  the  mortgagor  attaching  the  property  in  his  possession  in 
Vermont.  Cobb  v.  Buswell,  37  Vt.  337  ;  Lathe  r.  Schoff,  60  N.  H.  34. 
In  Cobb  V.  Buswell  the  property  was  taken  to  Vermont  witli  the  consent 
of  the  mortgagee,  and  in  Lathe  v.  Schoff  it  was  understood,  when  the 
mortgage  was  executed,  that  the  horses  mortgaged  were  to  be  removed 
to  Vermont  by  the  mortgagor  and  kept  there  after  the  season  of  summer 
travel  closed.  So  a  chattel  mortgage  made  by  a  citizen  of  Massachu- 
setts temporarily  in  New  York  with  the  mortgaged  property,  if  valid 
by  the  law  of  New  York,  is  valid  against  the  creditors  of  the  mortgagor 
attaching  the  property  in  his  possession  in  Massachusetts.  Langworthy 
/;.  Little,  12  Cush.  109. 

The  law  of  New  Hampshire  respecting  conditional  sales  has  no  extra- 
territorial force,  and  does  not  api)ly  to  sales  made  out  of  the  State. 
Neither  the  parties  nor  the  subject-matter  of  the  contract  respecting 
the  machines  were  within  its  operation.  If  the  conditional  sale  had 
l)eon  made  in  tliis  State  before  the  statute  was  enacted  requiring  an 
affidavit  of  the  good  faith  of  the  transac^tion  and  a  record  in  the  town 
clerk's  office,  it  would  not  have  been  affected  by  the  statute.  When 
the  machines  were  brouglit  to  this  State,  there  was  no  provision  of  the 

VOL.  II.  — 12 


178  CLEVELAND    MACIIIXE    WORKS    V.    LANG.  [CHAP.  VIL 

statute  for  recording  the  plaintiffs'  lien.  There  was  no  change  or  trans- 
fer of  title  in  this  State,  and  the  title  of  the  plaintiffs,  valid  aoainst 
creditors  under  a  contract  completed  in  Massachusetts,  was  not  de- 
stroj'ed  bj'  the  removal  of  the  properly  to  New  Hampshire. 

Smith  V.  Moore,  11  N.  H.  55,  cited  by  the  defendant  as  sustaining 
the  position  that  the  plaintiffs'  lien  was  destroyed  because  there  was  no 
law  in  this  State  providing  for  a  record  in  such  a  case,  is  an  authority 
against  the  defendant.  In  that  case  the  property  was  in  this  State 
when  the  mortgage  w^as  made,  the  mortgagor  residing  out  of  the  State. 
The  court  say,  "If  the  property  had  been  situated  out  of  the  State 
when  the  mortgage  was  made,  and  the  mortgage  had  been  valid  ac- 
cording to  the  law  of  the  place,  a  subsequent  removal  of  tae  property 
to  this  State  would  not  have  affected  its  validity,"  citing  Offutt  v. 
Flagg,   10  N.  H.  46. 

Conditional  sales  were  valid  in  this  State  without  record  until  Janu- 
ary 1,  1886.  McFarland  v.  Farmer,  42  N.  H.  386;  Holt  u.  Holt,  58 
K  H.  276  ;  Weeks  r.  Pike,  60  N,  H.  447.  The  statute  of  1885,  c.  30, 
had  no  application  to  contracts  between  parties  residing  out  of  the 
State,  and  made  no  provision  for  recording  such  contracts.  The  fact 
that  the  contract  is  not  within  the  statute  is  an  answer  to  tlie  position 
that  the  plaintiffs'  title  is  to  be  tested  by  the  law  of  New  Hampshire. 

The  attachment  of  the  real  estate  gave  the  defendant  no  possession 
of  or  right  of  property  in  the  machines.  Scott  v.  Manchester  Print 
Works,  44  N.  H.  507.  Hy  attaching  them  as  personal  propert}',  the 
defendant  claims  to  hold  the  possession  and  property  in  them,  as  the 
property  of  Parsons,  for  the  benefit  of  the  attaching  creditors.  If  Par- 
sons bad  an  attachable  interest  subject  to  the  plaintiffs'  lien,  the  defend- 
ant's claim  to  hold  the  entire  propert}'  under  the  attachment  entitles 
the  plaintiffs  to  maintain  replevin,  if  they  have  any  title  to  the  machines 
and  there  is  no  estoppel.  As  between  the  plaintiffs  and  Parsons,  the 
machines  were  the  property  of  the  plaintiffs.  They  were  never  the 
property  of  Parsons.  He  was  simply  a  bailee,  and  never  claimed  to 
own  them. 

"Judgment  and  execution  liens  attach  to  the  defendant's  real,  in- 
stead of  his  apparent,  interest  in  the  property.  It  follows  from  this 
that  the  sale  made  under  such  a  lien  can  ordinarily  transfer  no  interest 
beyond  that  in  fact  held  by  the  defendant  when  the  lien  attached,  or 
acquired  by  him  subsequently  thereto  and  before  the  sale."  Freem. 
Ex.,  §  335.  A  purchaser  at  a  sheriff's  sale,  there  being  no  estoppel, 
acquires  nc  iitle  to  propert}-  not  belonging  to  the  debtor.  Bi-yant  v. 
Whitcher,  52  N.  H.  158. 

An  attaching  creditor  is  not  in  the  position  of  a  purchasei  for  a  valu- 
able consideration  without  notice  of  any  defect  of  title.  The  defendant, 
and  the  creditors  of  Parsons  whom  he  represents,  do  not  occupy  the 
relation  of  bntia  fide  vendees  or  mortgagees  for  value  without  notice. 
They  stand  no  better  than  Parsons,  who  never  owned  or  claimed  to  own 
the  machines.     Their  claim  to  hold  the  property  against  the  plaintiffs' 


SECT.  III.]  KNOWLES    LOOM   WORKS   V.   VACHER.  1  <  9 

title  is  bised  upon  Parsous's  ownership,  and  not  upon  any  attempted 
tltsfer  oJtitle  W  bim  to  them  ;  and  as  he  had  no  title  they  took  noth- 
ino-  b\  the  attachment.  i  •  i   m.o 

TLi'e  case  has  no  analogy  to  an  attachment  of  property  to  which  the 
debtor  has  a  voidable  title  valid  until  rescinded  (Bradley  ^-^^^^'-^  ^^ 
NH  477),  or  to  the  numerous  class  of  cases  where  the  debtor  once 
had  a  valid  title  which  he  has  conveyed  or  transferred  in  fraud  of 

''tfparsons  had  no  title  to  the  machines,  and  as  no  legal  or  equitable 
.round  of  estoppel  to  the  assertion  of  the  plaintiffs'  title  is  shown,  the 
plaintiffs  are  entitled  to  judgment.  ^^^^,,^^,^^ ^,,  ,,,  ^,,,,,j,. 


KNOWLES   LOOM  WORKS   v.   VACHER. 
Supreme  Court,  New  Jersey.     1895. 
[Reported  57  Xew  Jerseij  Law,  490.] 

This  suit  relates  to  the  title  of  ten  silk  looms  which,  about  August 
1st,  1893,  were  in  the  possession  of  the  defendants,  and  wei^  then 
replevied  bv  the  plaintiff,  and  returned  under  bond  to  the  defendants. 

The  value  of  tlie  looms  was  then  $1,487.50,  which  amount,  with  in- 
terest thereon,  from  August  1,  1893,  the  plaintiff  will  be  entitled  to 
recover  if  it  be  entitled  to  a  judgment.  The  looms  were  originally  the 
property  of  the  plaintiff,  a  Massachusetts  corporation,  located  in  \\  orces- 
ter,  Massachusetts,  and  were  delivered  by  it  to  the  Paris  Silk  Com- 
nanv  a  New  Jersey  corporation,  located  in  Paterson,  under  a  contract 
for  the  sale  of  them  made  orally  in  the  city  of  New  York  between  an 
acrent  of  the  plaintiff  and  an  agent  of  the  Paris  Silk  Company.  Ac- 
cording to  the  terms  of  the  contract  the  looms  were  to  remain  the 
properly  of  the  plaintiff  until  they  were  fully  paid  for,  and  were  to  be 
paid   for   in  instalments,  at  periods    ranging  from  thirty  days  to  six 

months  after  delivery.  ,    .   ..     . 

This  contract  was  never  formally  reduced  to  writing,  but  its  terras 
can  be  gathered  from  letters  written  to  each  otiier  by  the  parties  in 
Worcester  and  Paterson,  which  refer  to  the  oral  contrac.-t. 

In  pursuance  of  the  contract,  the  looms  were  delivered  by  the  plain- 
tiff to  the  silk  company,  in  Paterson,  in  the  latter  part  of  May,  1893, 
and  shortly  afterwards  notes  were  given  by  the  silk  company  to  the 
plaintiff  for  the  amount  of  the  purchase-money.  Those  notes  have 
never  been  paid,  and  after  the  maturity  of  the  note  first  due  the  plam- 

1  Arc  G  A  Gray  Co.  .;.  Tavlor  Bros.  Iron-W.,rks  (>..  06  Fe.l.  680;  Dr.w  r  Smith. 
69  Me  393 -Barrett  ..  Kello;,  66  Vt.  .515,  29  Atl.  809;  Mcrshon  ..  Moors,  76.W.S, 
502.     See  Enslev  L.  Co.  v.  Lewis,  121  Ala.  94,  25  So.  729.  -  Ed. 


180  KNOWLES   LOOM    WORKS    V.   VACHER.  [CHAP.  VII. 

tiff  tendered  them  all  back  to  the  silk  company  before  issuing  the  writ 
in  this  cause.  On  July  5,  1893,  the  looms  being  in  the  possession  of 
the  Paris  Silk  Compan}',  at  Paterson,  were  mortgaged  b}-  that  company 
to  the  defendant  Hoguet,  to  secure  a  pre-existing  debt  due  from  the 
company  to  Hoguet,  Mr.  Hoguet  having  agreed  with  the  company  that 
whatever  he  realized  from  the  mortgage  he  would  distribute  among  the 
creditors  of  the  Paris  Silk  Compan}-  proportionately.  At  that  time 
the  silk  company  was  insolvent,  and  Hoguet  knew  it,  but  he  had  no 
notice  that  the  looms  were  not  the  property-  of  the  Paris  Silk  Company. 
The  title  which  the  defendants  now  set  up  depends  upon  that  mortgage. 
Whether,  under  these  circumstances,  the  plaintiff  or  the  defendants  are 
entitled  to  the  judgment  of  the  court,  is  a  question  reserved  and  cer- 
tified to  the  Supreme  Court  for  its  advisor}'  opinion. 

Van  Syckel,  J.^  On  behalf  of  the  defendants,  it  is  insisted  that 
the  sale  b}-  the  plaintiff  to  the  silk  compan}^,  being  a  conditional  one, 
was  void  as  against  the  mortgage  of  Hoguet  by  virtue  of  the  provisions 
of  the  act  of  May  9,  1889,  entitled  "  An  act  requiring  contracts  for  the 
conditional  sale  of  personal  propert}'  to  be  recorded."  Pamph.  L., 
p.  421.   .  .  . 

The  silk  company  was  the  party  contracting  to  bu}',  and  was  a  resi- 
dent of  this  State,  located  at  the  city  of  Paterson,  in  the  count}'  of 
Passaic.  The  contract  of  sale  was  not  recorded,  as  required  by  the 
act  of  1889. 

Two  points  are  involved  : 

First,  whether  the  statute  of  1889  is  applicable  to  this  case,  in  view 
of  the  fact  that  the  contract  of  sale  was  made  in  the  State  of  New  York  ; 
and,  second,  whether  the  defendant  Hoguet,  in  taking  a  mortgage  to 
secure  a  pre-existing  debt  due  from  the  Paris  Silk  Company  to  him, 
became  a  mortgagee  in  good  faith. 

The  act  of  1889  directs  the  contract  to  be  recorded  in  the  county 
where  the  buj'er  resides,  if  a  resident  of  this  State  at  the  time  of  the 
execution  of  the  contract,  and  if  not  a  resident  of  this  State,  then  in 
the  county  where  the  propert}'  shall  be  at  the  time  of  the  execution  of 
such  instrument. 

The  manifest  purpose  of  the  act  is  to  render  inefficacious  the  con- 
ditional sale  of  all  goods  held  in  this  State  where  the  contract  of  sale 
is  not  recorded. 

There  is  an  implied  mandate  in  the  act  that  the  contract  of  sale  shall 
be  in  writing,  otherwise  it  could  not  be  recorded  and  the  act  would  be 
futile. 

The  situs  of  the  property,  and  not  the  lex  loci  contractus,  determines 
the  validit}'  of  such  sales. 

The  contract  in  this  case  was  made  in  New  York,  but  the  property 
was  to  be  delivered,  and  was  delivered  to,  and  held  by  the  purchaser 
in  this  State. 

Great  contention  and  uncertaint}'  as  to  the  title  to  personal  property 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  III.]  MASURY    V.   ARKANSAS   NATIONAL   BANK.  181 

would  be  produced  if  purchasers  and  mortgagees  were  bound  to  ascer- 
tain whether  the  vendor  or  mortgagor  acquired  title  in  another  State 
before  they  could  contract  witli  safety  in  reference  to  it. 

Judicial  decision  in  this  State  has  been  hostile  to  such  an  interpre- 
tation of  the  law.     Marvin  Safe  Co.  v.  Norton,  19  Vroom,  410. 

Where  the  situs  of  personal  property  is  in  this  State,  it  is  subject  to 
our  statutor}-  provisions  in  the  adjudications  regarding  it  in  our  own 
courts,  in  a  suit  to  which  a  citizen  of  this  State  is  a  party. 

The  force  of  our  statutes  is  recognized  in  Varnum  v.  Camp,  1  Gr. 
326,  and  in  Bentley  r.  Whittemore,  4  C.  E.  Gr.  4G2. 

"No  one  can  serioush'  doubt  that  it  is  competent  for  any  State  to 
adopt  such  a  rule  in  its  own  legislation,  since  it  has  perfect  jurisdiction 
over  all  property,  personal  as  well  as  real,  within  its  own  territorial 
limits.  Nor  can  such  a  rule,  made  for  the  benefit  of  innocent  pur- 
chasers and  grantors,  be  deemed  justly  open  to  reproach  of  being 
founded  in  a  narrow  or  selfish  policy."     Story,  Confl.  L.,  §  390. 

It  seems  clear  that  the  New  Jersey  statute  must  dominate  this  con- 
troversy. .  .  . 

The  Circuit  Court  should  be  advised  that  the  subsequent  mortgagee 
is  entitled  to  judgment.^ 


MASURY   V.    ARKANSAS   NATIONAL  BANK. 

Circuit  Court  of  the  United  States,  E.  District  Arkansas.     1898. 

[Reported  87  Federal  Reporter,  381.] 

This  is  a  bill  in  equity  b}'  Grace  Masury  against  the  Arkansas  Na- 
tional Bank  and  others  to  cancel  a  sheriff's  sale  of  shares  in  a  corpo- 
ration, and  to  declare  and  foreclose  a  lien  on  the  stock.  The  cause 
was  heard  on  demurrer  to  the  bill. 

Williams,  District  Judge."  The  only  questions  involved  are  whether, 
under  the  statutes  of  Arkansas,  a  seizure  of  shares  of  the  capital  stock 
of  a  corporation  existing  under  the  lavA's  of  that  State,  bv  virtue  of  a 
writ  of  attachment,  or  under  execution,  takes  precedence  over  a  prior 
transfer  or  pledge,  not  transferred  on  the  books  of  the  corporation,  nor 
filed  for  record  in  the  otfice  of  the  county  clerk  of  the  county  in  which 
the  corporation  transacts  its  business,  and  whether  the  laws  of  this 
State  govern  such  a  transfer,  if  made  in  another  State.  As  to  the  last 
proposition,  learned  counsel  for  complainant  claim  that  Black  v.  Zach- 
arie,  3  How.  483,  is  conclusive  that  the  laws  of  N(!w  York,  where  the 
transfer  was  made,  and  not  the  laws  of  Arkansas,  of  which  Stale  the 
company  was   a  corporation,  control.     The  question  involved  in  tliat 

1  Ace.  In  re  Legg,  9«  Ked.  .'$20  ;  Do  la  Vergno  R.  M.  Co.  v.  11.  U.,  51  La.  Aun.  1733, 
26  So.  4.55.  —  Ei>. 

^  Part  of  tlie  opinion  only  i.s  given.  —  Ed. 


182        IN  RE  QUEENSLAND  MERCANTILE  AND  AGENCY  CO.       [CHAP.  VII. 

suit  was  not  that  of  a  transfer  of  shares,  but  an  assignment  of  the 
equity  of  redemption  in  stock  previously  assigned  and  delivered  as  a 
pledge.     The  court  sa}' : 

''  We  admit  that  the  validity  of  this  assignment  to  pass  the  right  to 
Black  in  the  stock  attached  depends  upon  the  laws  of  Louisiana  [the 
domicil  of  the  corporation],  and  not  upon  that  of  South  Carolina  [where 
the  assignment  was  made].  From  the  nature  of  the  stock  of  a  corpora- 
tion, which  is  created  b^-  and  under  the  authority  of  a  State,  it  is  necessa- 
rily, like  ever}'  otlier  attribute  of  the  corporation,  to  be  governed  by  the 
local  law  of  that  State,  and  not  by  the  local  law  of  any  foreign  State." 

Judge  Lowell,  speaking  of  the  same  subject,  says  : 

"  Whatever  the  general  principles  of  international  law  in  relation  to 
assignments  of  personal  claims  may  be,  the  validity  of  a  transfer  of 
stock  is  governed  by  the  law  of  the  place  where  the  corporation  is 
created."  Lowell,  Stocks,  §  50  ;  Hammond  r.  Hastings,  134  U.  S.401, 
10  Sup.  Ct.  727  ;  Green  v.  Van  Buskirk,  7  Wall.  140. 

I  am  therefore  of  the  opinion  that,  unless  the  transfer  of  this  stock 
is  valid  under  the  laws  of  Arkansas,  the  State  which  created  the  cor- 
poration, the  laws  of  the  State  where  the  transfer  was  actually'  made 
cannot  control. 


In  re  QUEENSLAND   MERCANTILE  AND   AGENCY 
COMPANY. 

Chancery  Division.     1891. 

[Reported  [1891]  I  Chancery  Division,  536.] 

This  was  the  hearing  of  two  summonses  in  the  winding-up  in  Eng- 
land of  an  Australian  compan}-,  which  was  also  being  wound  up  in 
Australia. 

One  summons  was  by  the  Union  Bank  of  Australia,  Limited,  an 
English  company,  that  the  P^nglish  liquidator  might  be  ordered  to  trans- 
fer to  them  the  sums  of  New  Consols  and  cash  standing  in  his  name, 
representing  tlie  proceeds  of  calls  in  his  hands  in  respect  of  shares  in 
the  compan}'  being  wound  up,  numbered  1  to  2,500  inclusiveh'. 

The  other  summons  was  by  the  Australasian  Investment  Company, 
that  out  of  the  sum  of  £24,730  125.  2d.  New  Consols  and  any  cash  in 
his  hands  or  in  court  representing  money  received  from  Scotch  share- 
holders in  the  company  in  liquidation,  the  sum  of  £12,666  4.**.  5d.  might 
be  paid  to  the  applicants  in  priority  over  all  other  payments  out  of  the 
said  funds.  This  summons  also  asked  that,  if  necessary,  a  case  might 
be  remitted  to  the  Court  of  Session  in  Scotland,  under  the  statute  22  & 
23  Vict.  c.  63,  §  1,  for  the  purpose  of  ascertaining  the  law  of  Scotland 
relative  to  matters  of  Scotch  law  involved. 


SECT.  III.]       IN  RE  QUEENSLAND  MERCANTILE  AND  AGENCY  CO.  183 

The  Queensland  and  Mercantile  and  Agency  Company  was  registered 
in  Brisbane,  and  for  several  years  before  it  was  wound  up  carried  on 
business  in  Queensland.  The  bankers  of  that  company  were  the  Union 
Bank  of  Australia,  who,  on  the  28th  of  June,  and  the  3d  of  September, 
1866,  took  from  the  Queensland  Company  two  debentures  of  £10,000 
and  £50,000  respectively  in  similar  form,  whereby  the  payment  of  such 
debentures  was  made  a  first  charge  on  the  uncalled  capital  made  re- 
ceivable in  respect  of  shares  numbered  from  1  to  2,500  in  the  Queens- 
land Company,  upon  each  of  which  shares  £50  had  been  paid  up  and 
£50  more  remained  uncalled. 

In  December,  1886,  the  company  passed  resolutions  calling  up  the 
balance  of  £50  per  share,  payable  by  equal  instalments  in  February, 
April,  June,  and  August,  1887,  respectively.  Notice  of  the  call  was 
given  to  the  shareholders,  but  they  never  had  any  notice  of  the  charge 
effected  by  the  said  two  debentures  in  favor  of  the  Union  Bank.  On 
the  24th  of  February,  1887,  a  Scotch  company,  called  the  Australasian 
Investment  Company,  commenced  an  action  in  Scothmd  against  the 
Queensland  Company  for  negligence,  and  immediately  afterwards,  on 
the  same  day  issued  a  Scotch  process  known  as  arrestment  on  the  de- 
pendence of  the  action,  against  numerous  holders  of  the  Queensland 
Company's  shares  who  were  resident  in  Scotland,  the  effect  of  which 
was  that  the  calls  payable  by  them  to  the  Queensland  Company  were 
arrested  in  their  hands,  and  the  Australasian  Company  (the  Pursuers 
in  the  action)  became  secured  creditors  on  the  funds  so  arrested  for  the 
amounts  for  which  they  should  establish  their  claim  in  the  action. 
By  tlie  terms  of  the  order  of  arrestment  the  sums  arrested  were  re- 
quired "  to  remain  in  the  hands  of  the  arrestees  under  sure  fence  and 
arrestment  at  the  instance  of  the  Pursuers,  aye  and  until  sufficient 
caution  and  surety  be  found  acted  in  the  books  of  Council  and  Session 
that  the  same  shall  be  made  forthcoming  to  the  said  Pursuers  as  ac- 
cords of  law  conform  to  the  summons  in  all  points." 

In  the  months  of  May,  July,  and  August,  1887,  judgments  were 
recovered  in  England  in  twenty-seven  actions  by  one  Drake  and  others 
against  the  Queensland  Company.  On  the  2d  of  September,  1887,  the 
Union  Bank  commenced  an  action  in  England  against  the  Queensland 
Company  in  respect  of  money  due  to  them  other  than  that  secured  by 
the  two  debentures,  and  on  the  7th  of  September  an  order  was  made 
in  all  those  actions  for  the  appointment  of  a  receiver  to  get  in  the  calls 
from  the  sliareholders  in  the  Queensland  Company. 

On  the  28th  of  October,  1887,  an  order  was  made  in  Queensland  for 
the  winding-up  of  the  Queensland  Company,  and  thereupon  the  £00,000 
secured  by  the  two  debentures  above  mentioned  became  payable.  On 
the  14th  of  January,  1888,  a  similar  order  was  made  in  England.  By 
various  proceedings  and  orders  in  England  and  in  Scotland,  to  which 
it  is  not  necessary  to  refer  in  detail,  the  Australasian  Company  wen> 
restrained  from  further  prosecuting  their  action  in  Scotland,  but  wilii- 
out  prejudice  to  the  security,  if  any,  upon  the  amounts  payal)le  l>y  the 


184       IN  KE  QUEENSLAND  MERCANTILE  AND  AGENCY  CO.       [CHAP.  VII, 

Scotch  shareholders  in  the  Queensland  Company  in  respect  of  the  said 
calls  which  the  Australasian  Compan}-  had  acquired  by  the  proceedings 
taken  by  them  in  Scotland  ;  and  the  official  liquidator  received  from 
the  receiver,  or  himself  collected,  and  now  held  on  separate  accounts 
the  amounts  paid  for  calls  by  the  Scotch  and  English  shareholders 
respectively,  the  receipts  from  the  Scotch  shareholders  being  about 
£24,730.  By  proceedings  in  the  winding-up  in  Queensland  the 
amounts  due  from  the  Queensland  Company  to  the  Union  Bank  were 
ascertained  at  upwards  of  £74,000  ;  but  it  was  admitted  that,  after 
allowing  for  securities  held  by  them,  their  claim  was  reduced  in  round 
figures  to  £31,000. 

On  the  hearing  of  the  summonses  the  Union  Bank  asked  for  an 
order  upon  the  official  liquidator  to  transfer  to  them  on  account  of 
their  claim  the  sums  he  has  thus  received  in  respect  of  the  shares 
numbered  1  to  2,500,  including  those  received  from  the  Scotch  share- 
holders. The  Australasian  Company  claimed,  on  the  other  hand,  to  be 
first  paid  out  of  the  moneys  received  from  the  Scotch  shareholders, 
£12,66G  4s.  5c?.,  which  had  been  found  in  the  English  winding-up  to 
be  the  amount  of  the  claim  due  to  them.  The  plaintiffs  in  the  actions 
of  Drake  and  others  against  the  Queensland  Company  also  asserted 
a  claim  to  the  funds  in  hand  against  both  the  Union  Bank  and  the 
Australasian  Compan}-,  upon  the  ground  that  as  against  them  the 
debentures  were  inoperative. 

The  only  evidence  of  the  law  of  Scotland  bearing  on  the  matters 
in  question  was  contained  in  an  affidavit  made  in  the  matter  by  John 
Blair,  writer  to  the  signet,  a  member  of  the  firm  in  Edinburgh  who 
were  the  solicitors  of  the  Australasian  Investment  Company.  The 
effect  of  it  is  stated  in  the  judgment.^ 

North,  J.  (after  stating  the  facts  as  above,  and  reading  parts  of 
Mr.  Blair's  affidavit,  continued).  It  is  not  satisfactory  to  me  to  find 
that  the  only  evidence  in  this  case  of  the  Scotch  law  is  contained  in 
an  affidavit  by  Mr.  Blair,  the  legal  adviser  of  the  Australasian  Com- 
pany, and  that,  although  there  is  no  evidence  contradicting  it,  the 
Union  Bank  state  that  they  will,  if  necessary,  contend  before  the 
House  of  Lords  that  such  affidavit  lays  down  the  Scotch  law  incor- 
rectly. This  may  be  open  before  their  Lordships  on  appeal,  but  it  is 
not  open  before  me,  for  the  question  of  Scotch  law  is  here  merely  a 
question  of  fact,  upon  which  the  evidence  is  all  one  way,  and  the 
Union  Bank  have  not  asked  me  to  give  them  an  opportunity  of  going 
into  further  evidence  or  to  send  a  case  for  the  opinion  of  the  Scotch 
court.  By  such  evidence  it  is  established  that  there  is,  by  virtue  of 
the  arrestment,  what  is  equivalent  to  an  actual  assignment  of  the  calls 
in  question  duly  intimated,  and  that  this,  by  the  law  of  Scotland,  is 
preferable  to  and  has  priority  over  the  assignment  of  the  Union  Bank, 
of  which,  though  prior  in  time  to  the  arrestment,  no  intimation  had 

1  The  tenor  of  the  debentures  and  arguments  of  counsel  are  omitted.  —  Ed. 


SECT,  m.]      IN  RE  QUEENSLAND  MERCAXTILE  AND  AGENCY  CO.  185 

been  given  at  the  date  when  the  assignment  b}-  arrestment  became 
complete  ;  and  this  is  what  I  feel  bound  to  decide. 

It  was  contended  on  behalf  of  the  Union  Bank  that  the  claim  of  the 
Australasian  Company  could  only  be  valid  as  against  "  the  sums  at- 
tached," which  was  said  to  be  what  would  remain  of  the  calls  after 
satisfying  what  was  due  to  the  Union  Bank  ;  but  this  is  quite  incon- 
sistent with  the  language  of  the  arrestment,  which  applies  specifically 
to  the  whole  sum  due  for  calls  from  each  of  the  shareholders  on  whom 
the  arrestment  was  served.  It  was  also  said  that  after  the  assignment 
to  the  Union  Bank  all  that  the  Queensland  Company  had  left  was  the 
surplus  remaining  over  after  paying  the  bank,  that  the  rest  of  the  calls 
belonged  to  the  bank,  and  that  it  was  contrary  to  principle  and  author- 
it}'  to  hold  tliat  a  process  of  law  against  the  debtor  could  affect  what 
was  the  propert}'  of  the  creditor,  the  Union  Bank.  But  in  the  present 
case  I  have  not  to  deal  with  a  mere  process  of  law,  such  as  a  judgment 
or  garnishee  order,  but  with  what  is  established  as  a  fact  to  be  equiva- 
lent to  an  actual  assignment,  and  which  on  the  evidence  I  must  treat 
in  exactly  the  same  way  as  if  such  an  assignment  had  been  actually 
executed  and  intimated. 

But  the  Union  Bank  also  put  theirclaim  to  priorit}'  over  the  Austra- 
lasian Company  in  another  way.  The}'  say  that  whatever  the  position 
of  matters  might  have  been  if  all  the  parties  to  these  transactions  had 
been  domiciled  in  Scotland,  the  facts  are  not  so ;  that  the  Queensland 
Company  were  creditors  in  respect  of  the  debt  due  from  the  share- 
holders for  calls  ;  that  this  company  was  domiciled  in  Queensland, 
and  therefore  the  validity  of  the  assignment  b}'  them  to  the  Union 
Bank  depends  upon  the  law  of  Queensland,  and  not  on  the  law  of  the 
Scotch  debtor's  residence  ;  that  by  the  law  of  Queensland  (which  is 
admitted  to  agree  with  that  of  England),  no  notice  or  intimation  was 
necessar}' ;  and  that  a  transfer  of  personal  or  movable  property, 
valid  by  the  law  of  the  owner's  domicil,  is  valid  wherever  the  property 
is  situated.  They  rely  on  the  principle  concisely  expressed  in  the 
maxim,  Mohilia  sequuntnr  personam,  and  more  fulh'  stated  in  numer- 
ous authorities,  of  which  it  is  sufficient  that  I  should  refer  to  one,  viz., 
the  judgment  of  Lord  Loughborough  in  Sill  v.  Worswick,  1  H.  Bl.  690. 
He  says  this:  "  It  is  a  clear  proposition,  not  only  of  the  law  of  Eng- 
land, but  of  every  country  in  the  world,  where  law  has  the  semblance  of 
science,  that  personal  property  has  no  localit}'.  The  meaning  of  that 
is,  not  that  personal  property  has  no  visible  locality,  but  that  it  is  sub- 
ject to  that  law  which  governs  the  person  of  tlie  owner.  With  respect 
to  the  disposition  of  it,  with  respect  to  the  transmission  of  it,  either  i>y 
succession  or  the  act  of  the  part}',  it  follows  the  law  of  the  person.  The 
owner  in  any  country  may  dispose  of  his  personal  property.  If  he 
dies,  it  is  not  the  law  of  the  country  in  which  the  property  is,  but  the 
law  of  the  country  of  which  he  was  a  subject,  that  will  regulate  the 
succession." 

In  my  view,  after  full  consideration,  it  is  not  necessary  for  me  to 


186         IN  RE  QUEENSLAND  MERCANTILE  AND  AGENCY  CO.       [CHAP.  VIL 

express  an}-  opinion  on  this  interesting  and  difficult  question  ;  for, 
assuming  the  principle  above  stated  to  include  such  a  ease  as  the 
present,  there  is  another  equally  well-known  rule  of  law,  viz.,  that  a 
transfer  of  movable  property,  duly  carried  out  according  to  the  law  of 
the  place  where  the  property  is  situated,  is  not  rendered  ineffectual  by 
showing  that  such  transfer  as  carried  out  is  not  in  accordance  with 
what  would  be  required  by  law  in  the  country-  where  its  owner  is  domi- 
ciled. To  give  an  instance.  According  to  Scotch  law,  it  is  necessary, 
in  order  to  give  a  charge  on  corporeal  movables,  that  they  should  be 
delivered  to  and  placed  in  the  possession  of  tlie  creditor.  But,  if  a 
domiciled  Scotchman  resident  in  London  gave  a  duly  registered  bill  of 
sale  of  the  furniture  of  his  house,  that  would  be  a  complete  and  elfec- 
tual  transfer  of  the  property  without  its  being  delivered  to  the  creditor, 
notwithstanding  that  such  a  disposition  of  furniture  in  Scotland  would 
have  been  ineffectual  without  delivery.  To  apply  this  to  the  present 
case,  the  Queensland  Company  did  certain  acts  (by  commission  or 
omission),  by  virtue  of  which  certain  legal  rights  arose  in  Scotland, 
having  identically  the  same  effect  in  all  respects  (according  to  the 
evidence  before  me)  as  if  the  Queensland  Company  had  on  the  date 
of  the  arrestment  executed  an  assignment  of  the  calls  in  question  to 
the  Australasian  Company,  and  such  assignment  had  been  forthwith 
intimated  to  the  persons  in  whose  hands  the  calls  were  arrested.  Such 
an  assignment  would,  according  to  the  evidence,  clearly  have  been 
preferred  to  another  assignment  bearing,  indeed,  an  earlier  date,  but 
not  completed  by  intimation;  and,  in  my  opinion,  the  right  of  those 
who  have  acquired  an  unexceptionable  title,  and  have  recovered  the 
property  according  to  the  law  of  the  country  where  it  is  found  and 
arrested,  cannot  be  defeated  by  showing  that  if  the  property  had  been 
elsewhere  the  title  of  the  Union  Bank  might  have  been  the  preferable 
one.  I  speak  of  the  Australasian  Company  as  having  recovered  the 
calls,  although  they  have,  as  matter  of  convenience,  been  received  by 
the  official  liquidator,  because  they  would  have  actually  received  them 
if  the  action  had  not  been  stayed,  and  the  rights  of  the  parties  cannot 
be  affected  by  the  court  having  stayed  the  action,  as  by  the  order 
staying  the  action  their  right  or  security  was  expressly  left  uni)rcju- 
diced.  The  terms  of  the  order  will  require  some  care,  in  dealing 
witli  the  figures  ;  but  in  substance  I  accede  to  the  summons  of  the 
Australasian  Company,  and  only  direct  the  payment  of  the  balance 
of  the  Scotch  calls  to  the  Union  Bank.  There  will  be  an  order  on 
both  summonses,  and  the  Australasian  Company  and  Union  Bank  will 
add  their  costs  to  their  respective  securities.  The  official  liquidator's 
costs  must  be  retained  bv  him  out  of  the  calls  in  his  hands. 


SECT.  III.]  CARTER    V.    MUTUAL   LIFE    INS.   CO.  187 


CARTER   v.   MUTUAL  LIFE  INSURANCE  COMPANY. 

Supreme  Court  of  the  Hawaii  ax.  Islands.     1896. 

[Reported  10  Hawaiian  Reports,  .559.] 

Frear,  J.^  This  is  an  action  on  a  policy  of  insurance  issued  b}-  the 
defendant  company  upon  the  life  of  Henri  G.  McGrew  for  85,000,  pay- 
able upon  his  death  to  "  Alphonsine  McGrew,  wife  of  Henri  G.  McGrew 
...  if  living,  if  not  living  to  his  executors,  administrators,  or  assigns." 
The  company  stands  ready  to  pay  the  money,  but  desires  that  it  be  first 
judicially  determined  who  is  entitled  to  it,  —  whether  Alphonsine  Mc- 
Grew or  the  administrator  of  the  insured.  The  doubt  upon  this  point 
is  occasioned  by  the  fact  that  the  insured  prior  to  his  decease  obtained 
a  decree  of  divorce  from  his  wife  on  the  ground  of  adultery,  the  validity 
and  effect  of  which  decree  are  questioned. 

The  contract  of  insurance  was  entered  into  in  the  Hawaiian  Islands : 
the  policy  is  dated  September  14,  1892  ;  it  was  issued  to  Henri  G. 
McGrew  upon  his  application  ;  he  retained  possession  of  it  and  paid 
all  premiums  upon  it ;  he  died  October  22,  1894  ;  at  the  time  of  enter- 
ing into  the  contract  and  until-  his  death  he  was  a  subject  and  resident 
of  and  domiciled  in  these  islands  ;  J.  O.  Carter  is  the  duly  appointed 
administrator  of  his  estate  :  all  conditions  and  requirements  necessary 
to  be  performed  or  complied  with  by  the  decedent  or  plaintiff  have  been 
performed  and  complied  with. 

The  former  decision  in  this  case  was  filed  August  15,  1895.  On 
October  4.  1895,  new  counsel  for  the  defendant  filed  a  motion  for  a 
rehearing,  based  on  a  number  of  grounds  therein  set  forth.  .   .  . 

The  first  point  relied  on  is,  that  the  court  manifestly  erred  in  con- 
struing the  policy  as  a  Hawaiian  contract,  whereas  it  appears  upon  its 
face  to  be  a  New  York  contract.  .  .  .  And  this  seems  to  be  the  source 
of  misunderstanding  in  this  case.  Construction  is  confused  with  own- 
ership. If  A  had  possession  of  certain  personal  property  under  a  con- 
tract it  might  be  a  question  of  the  construction  of  the  contract  wliether 
A's  interest  was  in  his  own  right,  and,  if  so,  what  that  interest  was,  or 
if  A  had  died,  it  might  be  a  question  of  construction,  whether  the  prop- 
ertv  should  then  pass  to  A's  representatives  or  to  some  one  else.  These 
questions  would  be  decided  by  the  law  of  the  place  of  contract.  But 
suppose  the  contract  were  construed  as  having  passed  the  property  ab- 
solutely to  A  and  his  representatives,  the  further  question  wlio  were 
the  representatives  would  be  one,  not  of  construction,  but  of  distribu- 
tion, to  be  solved  by  the  law  of  the  place,  not  of  the  contract,  but  of 
A's  domicil.  Or,  suppose  A  liad  previously  assigned  the  property,  his 
representatives  would  not  take  at  all,  —  not  becau.se  of  an  orroneous 

1  The  first  two  para^raiilis  <>f  tho  opiniou  are  taken  from  the  original  opinion. 
Part  of  the  opinion  is  omitted.  —  Kd. 


188  CARTER   V.    MUTUAL   LIFE    INS.   CO,  [CHAP.  VIL 

construction  of  the  contract  by  the  law  of  domicilor  any  other  law,  but 
because  the  ownership  of  the  property  had  changed,  —  a  question  which 
might  necessaril}'  be  determined  b^-some  other  law,  as  the  law  of  the 
place  of  assignment,  if  that  were  a  different  place.  So,  if  A  had  be- 
come bankrupt  and  the  property  had  become  assigned  by  operation  of 
law  to  his  assignee  in  bankruptcy.  So,  if  A  had  married  and  the  prop- 
erty had  passed  by  law  to  her  husband.  So,  as  in  this  case,  if  a  di- 
vorce had  been  obtained  against  her,  and  the  property  had  thereupon 
passed  to  her  husband  by  operation  of  law.  To  allow  an  assignee  of  a 
contract  to  recover,  is  not  to  var^-  the  terms  of  the  original  contract, 
but  to  enforce  the  terms  of  tlie  contract  of  assignment. 

It  is  further  argued,  that,  if  the  mere  fact  that  the  policy  is  a  New 
York  contract  is  not  sufficient  to  require  the  New  York  law  to  govern 
in  determining  the  question  of  assignment  by  operation  of  law,  as  dis- 
tinguished from  the  question  of  construction,  yet  it  is  expressly  pro- 
vided in  the  policy  that  the  New  York  law  should  govern,  and  it  was 
competent  for  the  parties  to  so  agree.  Let  us  assume  that  such  an 
agreement,  if  made,  would  have  been  valid ;  .  .  .  this  could  not  mean 
that  the  New  York  statutory  law  should  govern  everj'  question  that 
might  subsequently  arise  in  relation  to  the  polic}',  —  its  ownership,  the 
court  in  which  or  the  procedure  by  which  it  should  be  enforced,  the 
persons  who  would  be  the  insured's  representatives  in  case  he  survived 
his  wife,  etc.  Indeed,  New  York  law  must  be  assumed  to  include 
private  international  law,  by  which  the  effect  of  a  divorce  upon  the 
ownership  of  personal  property  is  determined  b}'  the  law  of  the  place 
of  divorce,  at  least  if  that  is  also  the  place  of  domicil  —  the  New  York 
statute  upon  the  subject  so  far  as  it  relates  to  personal  property  being 
presumed  to  appl}'  only  to  divorces  granted  in  that  State.  In  consider- 
ing this  question,  it  should  be  borne  in  mind  that  the  specific  provision 
in  the  pohcy  relating  to  assignment  is  not  involved. 

The  company,  not  having  brought  the  widow  into  court  by  inter- 
pleader, is  in  the  unfortunate  position  of  being  subjected  to  two  suits, 
—  one  by  the  administrator  here,  the  other  by  the  widow  in  California. 
It  must  now  rely  upon  the  assumption  that  the  two  courts  will  take  the 
same  view  of  the  law.  There  can  be  no  doubt  that  the  same  law 
should  govern  whether  the  action  is  brought  in  Hawaii,  Cahfornia,  or 
New  York.  In  our  opinion,  that  law  is  the  law  of  the  place  of  domicil 
and  divorce.  We  can  only  assume  that  the  California  court  will  take 
the  same  view.  .   .  . 

The  next  point  is,  that  section  1331  did  not  apply  to  the  property  in 
question,  because  at  the  time  of  the  divorce  neither  the  wife  nor  the 
policy  were  in  this  country  or  within  the  jurisdiction  of  the  court,  the 
wife  because  she  liad  gone  to  California,  the  policy,  because,  although 
it  remained  here  in  the  possession  of  the  husband,  being  personal 
property  it  followed  its  owner,  the  wife,  in  contemplation  of  law.  We 
presume  that  by  this  is  meant,  not  that  personal  propert}'  follows  its 
owner  wherever  the  latter  may  happen  to  go  temporaril}',  but  that  it  is 


SECT.  III.]  BADIN    V.    HEIRS    OF    AYME.  189 

governed  by  the  law  of  the  owner's  domicil,  or  residence  animo  manendi. 
Now  there  was  no  proof  whatever  that  the  wife  in  this  ease  intended  to 
change  her  domicil,  which  had  previously  been  here,  and  which,  in  the 
absence  of  proof  to  the  contrary,  would,  at  least  after  so  short  an  ab- 
sence, be  presumed  to  continue  here,  to  say  nothing  of  the  rule  that 
the  wife's  domicil  is  "that  of  her  husband,  except  under  certain  special 
circumstances.  But  however  that  may  be,  both  parties  were  undoubt- 
edly domiciled  here  when  the  divoi-ce  proceedings  were  commenced  and 
when  the  court  acquired  jurisdiction  over  them,  and  that  was  sufficient 
so  far  as  the  question  of  domicil  was  concerned.  The  court  having 
acquired  jurisdiction  under  these  circumstances  the  incidents  of  the 
divorce  would  follow  according  to  the  law  of  the  place  of  divorce. 

The  motion  for  tlie  rehearing  is  denied. 


BADIN   V.   HEIRS   OF  AYME.  ^ 

Court  of  Cassation,  France.     1815. 

[^Reported  5  Siren  Recueil  General  I.  47.] 

Marthe  Ayme,  French  by  origin,  had  left  her  native  country  to  live 
at  Avignon,  then  under  the  sovereignty  of  the  Pope.  She  made  at 
Avignon,  on  the  5th  of  July,  1784,  to  Marie  Boiiillet-Badin,  a  cumula- 
tive gift  of  all  her  property  then  owned  or  to  be  acquired,  reserving  the 
use  of  it  during  life  and  the  sum  of  200  francs  at  her  own  sole  disposal. 
Shortly  after,  Marthe  Ayme  returned  to  France,  and  on  the  11th  of  May, 
1785,  she  made  there  in  favor  of  her  nephews  a  new  gift  of  all  propertv 
then  owned  by  her,  and  also  a  will  by  which  she  created  them  her  iioirs. 
In  the  course  of  the  same  vear  she  brought  suit  against  Marie  Bouilict- 
Badin  for  revocation  of  the  gift  of  Jul}'  5,  1784,  on  the  ground  that  it 
included  after-acquired  property,  contrary  to  the  P'rench  ordinance  of 
1731.     She  died  June  4,  1786. 

Marie  Bouillet-Badin  averred  that  the  gift  was  valid,  because  made 
in  a  country  where  the  ordinance  was  not  in  force,  but  only  the  Roman 
law,  which  permitted  such  gifts  even  outside  marriage,  provided  the 
donor  do  not  entirely  despoil  liimself,  that  is,  retain  full  power  over 
some  property.  Here  the  entire  use  had  been  reserved  for  life,  to- 
gether with  absolute  power  over  200  francs. 

The  property  in  question  was  situated  in  France. 

The  Tribunal  of  First  Instance,  the  16th  Tiiermidor,  Year  6,  adjudged 
the  gift  valid.  On  appeal  the  Civil  Tribunal  of  the  Department  of  the 
Gard,  5th  Frimaire,  Year  8,  reversed  the  judgment.  Dame  Badin 
brought  error  in  Cassation.^ 

1  This  stateiiinrit  of  fiicts  is  condcnsei]  from  tliat  of  the  Reporter.  —  Ed. 


n^ 


190  MAHLER   V.    SCHIRMEK    AND   SCHLICK.  [CHAP.  VII. 

The  CotTRT.  The  principle  here  involved  is  that  prohibitor\-  laws, 
that  is,  such  as  forbid  the  transfer  of  property,  either  wholly  or  in  part 
or  under  specified  circumstances,  constitute  statutes  real  which  directly 
affect  the  property,  and  restrain  the  proprietor's  liberty  of  disposal 
whatever  be  his  domicil.  Of  this  sort  is  Article  lo  of  the  Ordinance  of 
1731  ;  in  fact,  this  article  clearlj-  belongs  to  the  class  of  statutes  real, 
since  it  forbids  gifts  inter  vivos  (except  when  made  in  a  marriage  con- 
tract) of  property  in  possession  and  after  acquired.  The  judgment 
therefore  should  annul,  as  it  has  done,  the  gift  in  litigation,  since  it  is  a 
cumulative  disposition  of  property  both  present  and  future,  so  far  as  it 
covers  propert}'  situated  in  France  and  therefore  subject  to  the  Ordi- 
nance of  1731.  Appeal  rejected. 


MAHLER   V.   SCHIRMER   AND    SCHLICK. 

Reichs-Oberhandelsgericht.     1872. 
[Reported  6  Entscheidungen  des  R.  0.  H.  G.  80.] 

The  Elbe  steamboat  "  Borussia,"  belonging  to  the  shipowner  Charles 
S.  of  Torgau,  la}-  at  anchor  in  Dresden  in  Ma}-,  1868,  when  she  was 
attached  at  suit  of  the  firm  of  Schirmer  &  Schlick  of  Leipzig  on  account 
of  a  loan  ;  the  next  September  execution  was  issued  against  the  vessel 
by  authority  of  the  same  court  for  the  same  firm  upon  a  claim  on  a  bill 
of  exchange,  but  the  sale  of  the  vessel  was  stayed. 

Against  this  execution  the  petitioner  Mahler  intervened.  The 
"Borussia,"  as  he  alleged,  on  Michaelmas,  1865,  was  mortgaged  to  him 
at  Torgau  in  the  method  there  required  by  law,  that  is,  by  the  minute 
of  a  notary  upon  the  bill  of  exchange,  for  a  debt  of  5000  thalers. 

The  judge  of  first  instance  admitted  the  binding  force  of  the  alleged 
mortgage  ;  the  Court  of  Appeal  denied  its  force  in  the  Kingdom  of 
Saxony.  The  R.  O.  H.  G.  agreed  with  the  judge  of  first  instance  for 
the  following  reasons. 

The  Court.  Section  10  of  the  Saxon  Civil  Code  provides:  *^  The 
title  to  movable  and  immovable  property,  as  well  as  the  right  of  pos- 
session, shall  be  decided  according  to  the  law  of  the  situs  of  said  prop- 
erty." The  previous  lively  dispute  whether  in  the  case  of  movables  the 
law  of  the  domicil  of  the  owner  or  the  law  of  the  situs  of  the  property 
should  prevail  is  settled  by  this  section  in  favor  of  the  second  alterna- 
tive, whilst  the  Prussian,  Austrian,  and  French  codes  are  based  upon 
the  acceptance  of  the  first.  But  the  place  where  the  property  is  at  the 
time  of  the  judicial  decision  is  not  all-important  for  the  application  of 
section  10  ;  both  lower  courts  have  conclusively  proved  this.  Neither 
according  to  the  letter  nor  to  the  spirit  of  the  statute  may  it  be  held 
that,  by  judicial  determiniation  of  the  title  to  property,  a  conveyance 
which  has  previously  been  executed  in  accordance  with  the  local  lex 


BECT.  III.]  MAHLER   V.   SCHIRMER   AND   SCIILICK.  191 

rei  sitCB  at  the  place  where  the  thing  then  was  may  be  regarded  as  a 
mere  nallity  because  it  is  not  according  to  the  law  of  the  forum.  For 
the  universal  rule  (especial!}'  recognized  for  Saxon  law  by  von  Sieben- 
haar  in  his  Commentary,  Vol.  1,  p.  49,  note  2)  is  that  all  juristic  facts 
are  to  be  adjudged  according  to  the  law  of  the  place  where  they  oc- 
curred. Legal  acts,  therefore,  when  they  are  in  the  category  of  already 
accomplished  facts  in  one  country,  are  recognized  as  such  in  every 
other  countr}-.  The  situation  will  of  course  be  altered  if  a  third  person 
acquires  an  independent  title  in  the  thing  at  the  place  to  which  it  is 
brought  later ;  for  the  determination  of  such  a  title  the  local  law 
governs,  according  to  section  10  of  the  Code.  Aud  if  the  right  ac- 
quired within  the  conntry  conflicts  with  that  before  acquired  abroad, 
the  local  law  prevails  with  respect  to  the  substantive  right. 

The  Saxon  judge  may  therefore  be  in  a  position  to  subject  to  the 
claims  of  his  local  law  the  decision  of  lawsuits  about  movables  ;  but 
the  admissibility  of  such  subjection  always  depends  on  the  actual  as- 
sumption that  the  things  have  come  within  the  jurisdiction  of  the 
Saxon  law.  The  things  must  be  situated  within  Saxony.  But  the  mo- 
mentary position  is  not  entirely  decisive ;  there  are  things  which  are 
constantly  changing  their  position  without  thereby  losing  their  legal 
relation  to  the  place  from  which  they  started.  This  is  especially  true 
of  the  most  important  instruments  of  transportation,  ships  and  railroad 
trains.  During  their  journeys  they  touch  at  foreign  places  only  in  pass- 
ing, with  the  intention  of  returning  to  the  place  where  their  legal  rela- 
tions are  situated.  The  recognition  of  this  place  of  departure  as  the 
place  that  governs  their  legal  relations  seems  to  be  enjoined  by  practi- 
cal necessity.  Without  this  recognition  intercourse  between  different 
countries  would  not  be  practicable,  and  an  insecuritj-  of  rights  would 
ensue  in  opposition  to  the  necessities  of  modern  law.  This  doctrine  is 
already  established  with  regard  to  sea-going  vessels;  the  same  prin- 
ciple must  however  by  analog}'  apply  in  substance  to  river  boats. 
Vessels  form  (as  von  Goldschmidt  has  strikingly  remarked.  Handbook 
of  Commercial  Law,  §  60,  p.  527)  as  it  were  the  immovables  of  com- 
merce and  are  in  many  ways  subject  to  the  law  of  immovables.  They 
have,  according  to  this  theory,  in  the  maritime  clauses  of  the  Commercial 
Code,  a  fixed  situation  like  real  estate,  a  quasi-domicil,  namely  the 
home  port,  which  constitutes  the  juridical  centre  of  the  outfit  (Gold- 
schmidt, op.  cit.,  note  8).  From  this  point  of  view  the  "  Borussia  " 
had  the  centre  of  her  legal  relations  in  the  kingdom  of  Prussia. 

The  boat,  as  has  been  said,  lay  at  anchor  in  Dresden  while  passing 
on  a  longer  voyage,  when  at  suit  of  Schirmer  &  Schlick,  the  defendants 
in  the  intervention,  she  was  attaclicfd,  in  May,  1868,  by  the  Saxon  judge. 
Ilcr  owner  was  an  inhabitant  of  Torgau,  and  a  Prussian  subject.  The 
complete  execution,  in  September,  18(58,  was  only  made  possible  by 
reason  of  the  previous  attachment  of  the  vessel  in  Dresden,  and  this 
legal  act  enforced  by  the  defendant  was  probably  the  only  thing  that 
kept  the  vessel   in  the  Saxon  dominions,  as  it  probably  also  rcijuired 


192  MAHLER    V.    SCHIRMER    AND    SCHLICK.  [CIIAP.  VII. 

the  fiU'ther  stay  of  the  owner  in  Dresden.     The  ship's  papers  were  all 
issued  by  authority  of  the  Prussian  State.     The  ship  belonged  to  that 
State  with  respect  to  its  juridical  relations.     This  is  the  more  certain 
that  according  to  the  treaty  concluded  between  Prussia  and  Saxony 
with  reference  to  the  navigation  of  the  Elbe  it  was  expressly  provided 
that  Prussian  vessels,  even  while  they  were  within  Saxony,  should  still 
form  part  of  the  Prussian  merchant-marine  (Art.  iv.  "Df  the  Elbschiff- 
fahrtsakte  of  June  23,  1821  ;  Ges.-Saramlung  1823,  p.  95  :  —  Section  10 
of  the  Additionalakte  of  April  13,  1844;   Ges.-Sammlung  1844,  p.  284  : 
—  Verordnung  of  February  16,  1866,  as  to  the  form  of  the  manifest, 
etc. ;  Ges.-Sammlung,  1866,  p.  49,  at  the  words,  '•  Each  vessel  must  be 
plainly  marked  with  the  name  of  the  place  where  she  belongs,"  etc.)  —  a 
relation  that  according  to  section  11  of  said  Additionalakte  is  not  lost 
by  a  change  of  situation  of  the  vessel  for  the  time  being,  but  only  when 
upon  withdrawal  of  the  ship's  papers  issued  by  one  State  the  vessel 
joins  the  marine  of  the  other.     The  acts  furnish  no  support   for  the 
contention  that  a  change  has  taken  place  in  the  registr}'  of  the  "  Borus- 
sia."     It  cannot  be  supposed  that  the  vessel  at  the  time  of  the  execution 
had  its  location  in  Saxony  in  the  sense  of  section  10  of  the  Civil  Code. 
The  situs  of  the  legal  relations  of  the  vessel  at  the  time  of  the  attach- 
ment was  likewise  not  in  Dresden  ;  and  that  process  was  therefore  not 
calculated  to  subject  the  vessel  to  the  exclusive  jurisdiction  of  the 
Saxon  law.    This  was  recognized  b}'  von  Siebenhaar  (op.  cit.,  p.  49)  ;  in 
accordance  with  the  constant  practice  he  clearly  holds  that  in  the  case 
of  movables  the  law  that  governs  is  not  under  all  circumstances  the 
law  of  the  place  where  they  happen  to  be  for  the  moment,  but  rather 
that  of  the  place  where,  according  to  the  intention  of  the  owner,  they 
are  destined  to  remain  ;  a  case  which  arises  especially  when  goods 
merely  pass  through   Saxony  in  the   post  or  on  a  railway,  or  when 
foreigners  while  on  a  journey  bring  goods  with  them  into  Saxony. 
The  situs  of  all  legal  relations  of  the  vessel  "  Borussia  "  was  and  con- 
tinued to  be  in  Prussia,  even  though  its  owner  had  not  yet  returned 
home.     Therefore  by  reason  of  section  10,  so  much  the  less  can   the 
validity  of  the  mortgage  claimed  b}'  the  intervenor  be  denied,  because 
even  from  the  standpoint  of  the  Saxon  law  no  real  conflict  is  presented 
between  the  successive  interests  in  the  vessel. 


SECT.  III.]       KEYHER  AND  SCHINTZ  V.  GAUTREAU  ET  COMPAGNIE.       193 

REYHER  &   SCHINTZ   v.   GAUTREAU   ET   COMPAGNIE. 

Court  of  Appeal  of  Brussels.     1876. 

[Reported  Pasicri'sie  Beige,  1877,  2,  12.] 

Gautreau  &  CiE.  of  Valparaiso  obtained  from  the  President  of  the 
Tribunal  of  Commerce  of  Antwerp,  as  creditors  of  the  California  Co. 
of  Chili,  authority  to  attach  in  the  Port  of  Antwerp  a  cargo  of  nitrate 
of  soda  which  had  been  laden  in  Peru  on  board  the  ship  •'  Pride  of 
Devon*"  Rejher  &  Schintz  of  Liverpool  had  bought  at  the  Liverpool 
Exchange  part  of  the  cargo ;  and  they  brought  suit  in  the  Civil  Tri- 
bunal of  Antwerp  to  annul  the  attachment. 

On  July  14,  1876, the  Tribunal  gave  judgment^  sustaining  the  attach- 
ment.    Appeal, 

The  Court.  This  court  is  not  dealing  with  the  order  of  the  Presi- 
dent of  the  Tribunal  of  Commerce  of  Antwerp,  which  authorized  the 
attachment  of  the  cargo  of  the  "  Pride  of  Devon,"  but  with  the  petition 
for  annulling  said  attachment,  which  has  been  effected  in  accordance 
with  said  order.  .   .   . 

Movables  found  on  Belgian  territory  are  governed,  when  considered 
individually-,  bj-  Belgian  law.  The  possessor  in  good  faith,  especiall}',  is 
protected  against  a  mere  replevin  suit  bj-  articles  2279  and  2280  of  the 
Civil  Code.  This  is  exactly  the  case  of  the  appellants  Reyher  & 
Schintz.  They  prove  that  they  bought  the  cargo  of  the  "  Pride  of 
Devon"  on  Ma}'  22,  187G,  of  Cox  Brothers,  brokers,  at  Liverpool,  deal- 
ing in  their  own  name,  and  that  they  regularly  paid  the  purchase-money. 
As  indorsees  of  the  bill  of  lading  (and  to  that  extent  of  the  goods)  they 
sent  it  to  Messrs.  Kniewitz-Bleeckx  &  Cie.,  of  Antwerp,  to  whom  the 
goods  were  delivered  as  fast  as  landed,  after  the  attachment.  The 
appellees  cite  no  foreign  law  which  would  be  violated  by  the  sale  of 
May  22.  The  allegation  (denied  by  the  appellants)  that  the  indorse- 
ment in  blank  of  a  bill  of  lading  would  not  effect  a  transfer  of  title  of  a 
cargo  according  to  the  law  of  Peru  is  not  in  point,  since  the  appellants 
bought  at  Liverpool,  and  it  is  clear  that  by  English  law  the  indorse- 
ment in  blank  passes  title.  In  any  case,  in  view  of  the  sale  of  May  22, 
the  indorsement  of  the  bill  of  lading  is  no  more  than  a  delivery  order 
given  to  the  master,  who  held  the  merchandise  for  the  appellants. 

It  results  from  what  has  been  said  that  even  if  the  law  of  Peru  con- 
siders as  a  kind  of  theft  the  violation  of  legal  attachment  to  which,  it 
appears,  the  cargo  of  the  "  Pride  of  D(!von  "  was  subject  at  the  port  of 
embarkation,  article  2280  of  tlie  Civil  Code  would  relieve  the  appellants 
from  the  suit  for  restoration  of  the  merchandise,  since  the  appellees  do 
not  offer  to  reimburse  the  price  paid  by  the  appellants.  Under  these 
circumstances,  the  attachment  cannot  be  maintained. 

Judgment  reversed. 

1  This  judgment,  and  part  of  the  juiigment  of  the  Court  of  Appeal,  are  omitted. 
—  Ei). 

TOL.    II. 13 


194  FR^RES    V.    VARTHALITL  [(JHAP.  VII. 


CO^TEAUX   FRi:RES   v.  VARTHALITL 
Spanish  Consular  Court,  Constantinople.     1892. 

[Reported  20  Clunet,  447.] 

Varthaliti,  a  Spanish  subject,  had  pledged  vai-ious  valuable  securi- 
ties to  secure  advances  to  him  from  the  banking-house  of  Couteaux 
Freres,  of  Belgian  nationality.  Varthaliti  having  been  declared  bank- 
rupt, certain  creditors  attacked  the  validity  of  the  pledge  in  the  Spanish 
Consular  Court,  sitting  as  a  bankruptcy'  court,  on  the  ground  that  it 
was  null  as  to  them,  not  having  been  executed  in  iiccordance  with 
Spanish  law,  the  law  of  the  court.  They  petitioned  the  court  to  declare 
that  the  securities  were  deposited  in  the  bank  in  the  course  of  business, 
and  to  bring  them  into  the  fund  for  the  general  creditors. 

The  Court.  The  principle  actus  regit  locum,  which  the  Advocate 
Gain  invokes  as  the  complement  of  the  aphorism  locus  regit  actum,  is 
not  to  be  admitted.  We  cannot  appl}'  to  the  present  case  article  1865 
of  the  Civil  Code ;  ^  to  do  so  would  be  to  establish  a  rule  as  false  as 
prejudicial.  If  it  were  established,  a  Spanish  subject  knowing  hi& 
own  law  and  acting  in  bad  faith,  might  appl^'  on  the  eve  of  his  faihire 
at  the  establishment  of  a  subject  of  another  country,  at  the  place 
where  they  both  reside,  for  a  loan  or  a  credit  for  his  own  personal  use, 
pledging  as  securitj^  valuable  effects :  being  sure  that  at  a  certain  time 
these  valuable  effects,  by  virtue  of  the  article  in  question,  would  fall 
into  the  mass  of  his  assets,  for  the  benefit  of  his  general  creditors  and 
to  the  obvious  prejudice  of  the  new  creditor.  Every  subject  of  each 
nation  could  as  well  act  in  the  same  way,  profiting  in  a  foreign  country 
by  the  Code  under  which  he  should  have  acted  if  he  had  been  in  his 
own  country.  If  this  doctrine  were  once  admitted  in  a  place  like  Con- 
stantinople, where  commerce  is  carried  on  by  subjects  of  every  nation 
under  the  sun,  the  application  of  distinct  laws  to  cases  like  this  in 
question  would  produce  such  confusion  that  business  would  be  paral- 
yzed b}'  the  annulling  of  contracts. 

As  a  result  of  facts  of  this  sort,  and  by  mutual  agreement  of  nations 
which  had  once  suflfered  from  them,  private  international  law  came  into 
existence,  inspired  by  the  necessity  of  admitting  the  effect  of  foreign 
laws.  This  law  has  the  character  of  customary  law,  and  its  principles 
are  distinguished  by  a  number  of  statutes,  namely :  the  statute  per- 
sonal, which  affects  persons  ;  the  statute  real,  which  governs  things  : 
and  the  statute  formal,  which  deals  with  forms.  The  statute  formal  is 
based  on  the  principal  locus  regit  actum^  and  in  no  manner  on  the 
principle  actus  regit  locum  which  Advocate  Galli  would  have  applied. 
Article  11  of  the  Civil  Code,  invoked  by  Advocates  G.  Coflteaux  and 
E.  Degand  in  their  arguments,  to  the  effect  that  "  forms  and  solemni- 

1  "  A  mortgage  has  no  effect  against  third  persons  unless  its  execution  is  established 
by  a  pul)lic  act." 


SECT.  IV.]         LOKI)  CKANSTOWN  V.    JOHNSTON.  195 

ties  of  contracts,  wills,  and  other  public  acts  are  governed  by  the  laws 
of  the  countries  where  they  are  executed,"  implicitly  deals  with  the 
statute  formal,  and  the  only  principle  applicable  to  the  present  case  is 
therefore  locus  reyit  actum. 

The  Ottoman  law  of  Medjele  in  force  in  this  empire  provides  that 
••  pledge  is  constituted  l)y  the  simple  declaration  of  consent  of  parties 
followed  by  delivery  of  possession  of  the  thing  pledged."  Varthaliti 
acknowledged  liaving  delivered  to  CoMeaux  Freres  the  valuable  effects 
in  question  in  pledge,  as  security  for  debts  contracted  with  them.  The 
aforesaid  law  of  ]\[edjele  furnishes  a  rule  for  transactions  of  this  kind, 
which  are  entered  into  daily  by  banks  and  money-lenders  established 
here. 


SECTION   IV. 

TRUSTS. 


dpvSiBJT^ 


^. 


.oc 


LORD   CRANSTOWN   v.   JOHNSTON.  / 

Chaxcery.     1796. 
[Reported  3  Vesey,  170.] 

The  bill  was  filed  upon  the  following  case.     After  various  dealings 
between  the  plaintiff  and  defendant  previous  to  the  j'ear  1788,  which 
produced  a  bill  by  the  defendant,  the}'  agreed  to  an  arbitration.     Upon 
the  8th  of  Jul}',    1789,   an  award  was   made,  that  Lord   Cranstown 
should,  upon  the   1st  of  March,   1790,  pay  at  Lloyd's   Coffee  House 
£2,5'21,  10s.  9c?.     At  the  time  of  the  award  the  plaintiff  was  abroad, 
and  he  did  not  comply  with  it.     He  was  entitled  to  the  reversion  upon 
the  death  of  his  mother  of  a  plantation  in  the  island  of  St.   Chris- 
topher, the  average  product  of  which  was  £5,000  a  year;   and  dur- 
ing the  hfe  of  his   mother  he   was  entitled  to  an  annuity  of  £300, 
charged  upon  that  plantation.     The  defendant,  immediately  after  the 
expiration  of  the  time  limited  by  the  award,  procured  an  agent  to  in- 
stitute proceedings  in  the  island  against  the  plaintiff  in  his  absence ; 
and  thereby  obtained  payment  of  the  said  annuity  since  the  25th  of 
December,    1789.      The   plaintiff  returned  to   England   in   1791,  and 
frequentl}'  offered  to  pay  the  defendant,  and  requested  him  to  come  to 
an  account :  but  he  refused  to  refund  ;  and  after  the  expiration  of  the 
time  commenced  an  action  in  the  Court  of  King's  Bench  and  Common 
Pleas  in  tlie  island,  obtained  judgment,  and  caused  an  execution  to  be 
taken   oiit ;  and   thereby   tlie  Deputy  Provost   INIarslial  of   the   isl;uid 
seized  and  put  up  to  public  sale  the  said  rent-charge  and  reversion  ; 
and  the  defendant  became  tlie  purchaser  of  botii  for  £2,000  cuneiicy  : 


m^ 


196  LORD    CRANSTOWN   V.    JOHNSTON.  [CHAP.  VII. 

and  a  bill  of  sale  and  conveyance  was  executed  to  him  by  the  said 
Deputy  Provost  Marshal,  by  means  of  which  he  was  become  entitled 
to  his  own  use;  and  £2,000  currency  being  of  the  value  of  £1,200 
sterling,  he  claims  to  have  a  personal  demand  for  the  remainder  of 
the  sum  awarded.^ 

Sir  Richard  Pepper  Arden,  Master  of  the  Rolls.  This  relief 
is  sought  upon  the  terms  of  paying  all  such  sums  of  money  as  were 
due  to  the  defendant  at  the  time  of  the  judgment,  and  the  costs  and 
expenses  he  was  put  to  in  procuring  and  carrying  into  effect  that 
judgment ;  and  I  suppose,  though  it  is  not  expressly  stated,  upon  pay- 
ment of  all  such  incumbrances  affecting  the  same  estates  as  the 
defendant  may  have  become  entitled  to.  From  the  moment  the  case 
was  opened,  and  after  reading  the  evidence,  there  can  be  no  question 
except  as  to  the  terms  of  the  relief;  for  I  confess,  I  never  saw  a 
ca^e  in  which  the  relief  sought  was  more  clear ;  and  I  must  forget 
the  name  of  the  court  in  which  I  sit  if  I  refuse  to  grant  it.  .  .  . 
Such  a  picture  of  a  sale  under  a  judgment  so  insisted  upon  is  such 
as  I  should  not  have  thought  could  have  been  exhibited  in  a  court 
of  justice  with  a  serious  intention,  supposing  that  any  law  of  any 
countrj-  should  be  perverted  to  such  a  purpose. 

It  is  material  to  see  what  was  the  law  to  which  the  defendant 
applied  for  enforcing  paj'ment.  He  could  not  with  effect  in  this  coun- 
tr}' ;  but  he  found  out  this  interest  in  that  island :  where  there  was 
an  act  of  assembly  authorizing  any  creditor  to  proceed  against  an 
absent  debtor  b}-  writ  of  summons,  and  in  case  the  defendant  shall 
secrete  and  conceal  himself,  so  that  the  Provost  Marshal  or  other 
person  summoning  cannot  find  him,  then  one  summons  and  a  copy 
of  the  declaration  left  at  the  last  usual  place  of  abode,  or  upon  the 
freehold  of  the  defendant,  and  another  nailed  up  at  the  court-house 
door,  shall  be  good  and  effectual.  He  thought  fit  to  proceed  on  this 
law  ;  and  I  must  now  suppose  he  had  a  right  so  to  do,  though  the 
plaintiff,  I  think,  was  very  ill  advised  for  not  trjing  whether  an}'  relief 
could  be  given  in  the  island :  a  summons  left  upon  the  freehold,  as  it 
is  called,  of  a  person  who  had  no  freehold  in  possession  ;  who  had 
no  tenant,  upon  whom  this  constructive  notice  could  be  served  ;  and 
the  creditor  here  knowing  this  avails  himself  of  this  law,  which  I 
do  not  mean  to  quarrel  with  :  but  neither  that  law  nor  any  law  in  His 
Majesty's  dominions  could  be,  I  hope,  carried  to  the  extent  of  author- 
izing a  sale  without  either  actual  or  constructive  notice. 

It  is  perfectly  clear,  the  plaintiff  had  no  conception  that  his  estate 
was  to  be  sold.  He  knew  the  defendant  had  a  judgment,  and  thought 
it  would  be  a  security  to  him  ;  and  in  the  letter  of  the  4th  of  October 
hopes  he  will  be  content  with  that.   ... 

Upon  the  whole  it  comes  to  this  :  that  by  a  proceeding  in  the  island 
an  absentee's  estate  ma}-  be  brought  to  sale,  and   for  whatever  in- 

1  The  statement  of  evidence,  arguments  of  counsel,  and  part  of  the  opinion  are 
omitted.  —  Ed. 


SECT.  IV.]  LOKD    CKANSTOWX    V.    JOHNSTON.  197 

terest  he  has,  without  any  particular,  upon  wliich  tliey  are  to  bid : 
the  question  is,  whether  an}-  court  will  permit  the  transaction  to 
avail  to  that  extent.  It  is  said,  this  court  has  no  jurisdiction,  be- 
cause it  is  a  proceeding  in  the  "West  Indies.  It  has  been  argued 
ver}-  sensibly,  that  it  is  strange  for  this  court  to  say,  it  is  void  b}' 
the  laws  of  the  island  or  for  want  of  notice.  I  admit,  I  am  bound 
to  say,  that  according  to  those  laws  a  creditor  ma}-  do  this.  To  that 
law  he  has  had  recourse,  and  wishes  to  avail  himself  of  it ;  the 
question  is,  whether  an  English  court  will  permit  such  a  use  to  be 
made  of  the  law  of  that  island  or  any  other  country.  It  is  sold,  not 
to  satisfy  the  debt,  but  in  order  to  get  the  estate,  which  the  law  of 
that  country  never  could  intend,  for  a  price  much  inadequate  to  the 
real  value,  and  to  pay  himself  more  than  the  debt,  for  which  the 
suit  was  commenced,  and  for  which  only  the  scale  could  be  holden. 
It  was  not  much  litigated  that  the  courts  of  equity  here  have  an 
equal  right  to  interfere  with  regard  to  judgments  or  mortgages  upon 
lands  in  a  foreign  countr}-  as  upon  lands  here.  Bills  are  often  filed 
upon  mortgages  in  the  West  Indies.  The  onl}-  distinction  is,  that 
this  court  cannot  act  upon  the  land  directly,  but  acts  upon  the  con- 
science of  the  person  living  here.  Archer  r.  Preston,  Lord  Arglasse 
r.  Muschamp,  Lord  Kildare  r.  Eustace,  1  Eq.  Abr.  133  ;  1  Vern.  75, 
135,  419.  Those  cases  clearl}-  show,  that  with  regard  to  any  con- 
tract made  or  equity  between  persons  in  this  country-  respecting  lands 
in  a  foreign  countr}-,  particularly  in  the  British  dominions,  this  court 
will  hold  the  same  jurisdiction  as  if  they  were  situated  in  England. 
Lord  Hardwicke  lays  down  the  same  doctrine,  3  Atk.  589.  Therefore 
without  affecting  the  junsdiction  of  the  courts  there,  or  questioning  the 
regularity  of  the  proceedings  as  in  a  court  of  law,  or  saying  that  this 
sale  would  have  been  set  aside  either  in  law  or  equity  there,  I  have 
no  difficulty  in  saying,  which  is  all  I  have  to  say,  that  this  creditor 
has  availed  himself  of  the  advantage  he  got  by  the  nature  of  those 
laws  to  proceed  behind  the  back  of  the  debtor  upon  a  constructive 
notice,  which  could  not  operate  to  the  only  point  to  which  a  con- 
structive notice  ought,  that  there  might  be  actual  notice  without 
wilful  default :  that  he  has  gained  an  advantage,  which  neither  the 
law  of  this  nor  of  any  other  country  would  permit.  I  will  lay  down 
the  rule  as  broad  as  this :  this  court  will  not  |)C'rmit  him  to  avail 
himself  of  the  law  of  any  other  country  to  do  what  would  be  gross 
injustice. 

It  is  said,  what  if  the  sale  had  been  to  a  third  person?  I  am  glad 
I  have  not  to  determine;  that.  A  third  person  niiglit  have  a  great  deal 
more  to  say  than  this  defendant  can.  He  might  say  the  law  of  the 
island  authorizes  a  lottery,  and  having  bid  he  has  a  right  to  retain  it. 
But  this  defendant  has  no  such  right  except  for  tlie  purpose  of  pay- 
ing himself  the  debt.   .   .   . 

Therefore  on  payment  of  the  money  awarded,  and  such  sums  as 
the  defendant  has  paid  in  the  island,  with   interest  at  T)  per  cent,  ho 


198  EX    PAETE    POLLARD.       IX    RE    COURTNEY.  [CHAP.  VIL 

must  reconve}',  subject  to  other  incumbrances.  Take  an  account  of 
what  is  due  for  principal  and  interest,  and  also  of  what  is  due  upon 
the  pa3'ments  of  the  annuity  with  interest,  and  reserve  the  costs. 


Ex  PAKTE   POLLARD.     Ix   re    COURTNEY. 

Chancery.     1840. 
[Reported  Montague  ^-  Chittij's  Reports,  239.] 

Lord  Cottenham,  L.  C.-^  The  sliort  i-esult  of  the  facts  of  this  case, 
as  stated  in  the  special  case  b}-  which  I  am  bound,  is,  that  the  bank- 
rupts were  absolutely  entitled,  as  part  of  their  partnership  propertj-,  to 
some  land  in  Scotland,  the  legal  title  being  in  George  Courtney-,  one  of 
the  bankrupts  ;  that  the  firm,  being  indebted  to  the  petitioner,  George 
Pollai'd,  in  order  to  induce  him  to  give  tliem  further  credit,  deposited 
with  him  the  disposition  and  instrument  of  seisin,  being  the  title  deeds 
of  such  lands,  and  signed  and  gave  to  him  a  memorandum  in  writing, 
dated  the  13th  of  March,  1832,  declaring  that  they  thereby  gave  to 
Pollard  a  lien  upon  the  land  for  the  general  balance  of  all  or  any 
monies  that  then  were  or  might  thereafter  become  due  to  him  from 
them  to  the  extent  of  £2,000,  and  they  agreed  that  he  should  stand  in 
the  nature  of  an  equitable  mortgagee  thereof;  and,  on  demand,  they 
further  agreed  to  make,  do,  and  perfect  all  such  acts  for  the  better 
securing  to  him  of  any  such  monies  as  aforesaid  ;  that  Pollard,  relying 
upon  the  securit}"  of  the  hereditaments  so  charged  to  him  as  aforesaid, 
continued  to  give  credit  to  the  bankrupts  to  the  time  of  their  bank- 
ruptcy, which  took  place  on  the  20th  December,  1832,  at  which  time 
he  was  a  creditor  for  the  sum  of  £1,927  As.  6d.  The  only  other  facts 
stated  in  the  special  case,  material  to  the  present  question,  is,  that  b}' 
the  law  of  Scotland  no  lien  or  equitable  mortgage  on  the  estate  in 
question  was  created  by  the  deposit  of  the  title  deeds,  or  by  the  writ- 
ten memorandum.  The  question  is,  whether  Pollard  is,  under  the  cir- 
cumstances, entitled  to  have  his  debt  paid  out  of  that  part  of  the  estate 
of  the  bankrupts  which  consists  of  their  property  in  Scotland,  in  pref- 
erence to  their  general  creditors;  or,  in  other  words,  the  assignees 
being  liable  to  all  the  equities  to  which  the  bankrupt  was  subject, 
whether  such  a  deposit  and  agreement,  made  and  entered  into  in  this 
country,  gave  to  the  creditor  such  a  title  as  against  his  debtor  to  have 
the  agreement  performed  and  the  debt  paid  out  of  the  property  in 
Scotland,  the  subject  of  such  deposit  and  agreement.  The  special  case 
also  finds  that  the  deposit  and  agreement  does  not  b}'  the  law  of  Scot- 
land create  any  lien  or  equitable  mortgage  upon  the  estate.  By  this 
statement  of  the  law  of  Scotland,  which,  sitting  here,  I  must  consider 

^  The  opinion  only  is  given.  — Ed. 


SECT.  IV.]  EX    PARTE    POLLAKD.      IN    RE    COURTNEY.  199 

as  a  fact,  I  am  bound,  but  so  far  only  as  the  statement  goes,  and  that 
does  not  find  anything  contrary  to  the  well-known  rule,  that  obligations 
to  convey,  perfected  f>ecundum  legem  domicilii,  are  binding  in  Scot- 
land, but  that  by  the  law  of  Scotland  no  lien  or  equitable  mortgage 
was  created  by  the  deposit  and  agreement ;  by  which  must  be  under- 
stood that  the  law  of  Scotland  does  not  permit  such  deposit  and  agree- 
ment to  operate  in  rem,  and  not  that  they  may  not  give  a  title  to  relief 
in  personam.  It  is  true  that  in  this  country  contracts  for  sale,  or 
(whether  expressed  or  implied)  for  charging  lands,  are  in  certain  cases 
made  by  the  courts  of  equity  to  operate  in  reyn  :  but  in  contracts 
respecting  lands  in  countries  not  witliin  the  jurisdiction  of  these  courts 
they  can  only  be  enforced  by  proceedings  in  personam,  which  courts  of 
equity  here  are  constantly  in  the  habit  of  doing  :  not  thereby  in  any 
respect  interfering  with  the  lex  loci  rei  sitce.  If  indeed  the  law  of  the 
country  where  the  land  is  situate  should  not  permit  or  not  enable  the 
defendant  to  do  what  the  court  might  otherwise  think  it  right  to  decree, 
it  would  be  useless  and  unjust  to  direct  him  to  do  the  act ;  but  when 
there  is  no  such  impediment  the  courts  of  this  country,  in  the  exercise 
of  their  jurisdiction  over  contracts  made  here,  or  in  administering 
equities  between  parties  residing  here,  act  upon  their  own  rules,  and 
are  not  influenced  by  any  consideration  of  what  the  effect  of  such  con- 
tracts might  be  in  the  country  where  the  lands  are  situate,  or  of  the 
manner  in  which  the  courts  of  such  countries  might  deal-  with  such 
equities. 

The  observations  of  Lord  Hardwicke  in  Penn  r.  Baltimore,  1  Ves. 
454,  are  founded  upon  this  distinction.  In  Lord  Cranstown  v.  Johnston, 
3  Ves.  182,  Lord  Alvanley,  upon  principles  of  equity  familiar  in  this 
country,  set  aside  a  sale  in  the  Island  of  St.  Christo[)her,  by  the  laws 
of  which  country  the  sale  was  perfectly  good,  no  such  principles  of 
equity  being  recognized  by  the  courts  there,  saying,  "  With  regard  to 
any  contract  made  or  equity  between  persons  in  this  country  respect- 
incr  lands  in  a  foreign  country,  particularly  in  the  British  dominions, 
this  court  will  hold  the  same  jurisdiction  as  if  they  were  situated  in 
England."  In  Scott  v.  Nesbitt,  14  Ves.  442,  Lord  Eldon,  in  the  face  of 
the°master's  report  finding  that  there  was  no  law  or  usage  in  Jamaica 
for  a  lien  bv  a  consignee  in  resi)ect  of  supplies  furnished  to  the  estate, 
directed  consignees  to  be  allowed  such  expenditure  in  their  account 
with  encumbrancers.  Bills  for  specific  performance  of  contracts  for 
the  sale  of  lauds,  or  respecting  mortgages  of  estates,  in  the  colonies 
and  elsewhere  out  of  the  jurisdiction  of  this  court,  are  of  familiar  occur- 
rence. Why  then,  consistently  with  these  principles  and  these  authori- 
ties, sliould  the  fact,  that  by  the  law  of  Scotland  no  lien  or  equitable 
mortgage  was  created  by  the  deposit  and  memorandum  in  this  case, 
prevent"  the  courts  of  this  country  from  giving  such  effect  to  the  trans- 
actions between  the  parties  as  it  would  have  given  if  the  land  had 
been  in  England?  If  the  contract  had  been  to  sell  the  lands  a  specific 
pcrforuianco   would  have  Ix'cn   decreed  ;  and   why   is   all   relief  to  be 


200  ACKER    V.    TRIEST.  [CHAP.  VII. 

refused  because  the  contract  is  to  sell,  subject  to  a  condition  for 
redemption?  The  substance  of  the  agreement  is  to  charge  the  debt 
upon  the  estates,  and  to  do  and  perfect  all  such  acts  as  ma}'  be  neces- 
sary for  the  purpose;  and  if  the  court  would  decree  specific  perform- 
ance of  this  contract,  and  the  completion  of  the  securitj-  according  to 
the  forms  of  law  in  Scotland,  it  will  give  effect  to  this  equity  by  paying 
out  of  the  proceeds  of  the  estate  (which  being  part  of  the  bankrupt's 
estate  must  be  sold)  what  is  found  to  be  the  amount  of  the  debt  so 
agreed  to  be  charged  upon  it,  which  is  what  the  creditor  asks.  The 
special  case  finds,  that  the  deeds  were  deposited  and  the  agreement 
signed  by  the  bankrupts  in  order  to  induce  the  creditor  to  give  them 
further  credit,  and  that  he,  relying  upon  the  security  of  the  heredita- 
ments so  charged  to  him,  continued  to  give  credit  to  the  bankrupts  to 
the  time  of  their  bankruptcy.  The  transaction  is  in  no  respect  im- 
peached, and  there  is  no  competition  with  any  person  having  obtained 
a  title  under  the  law  of  Scotland.  The  only  paities  resisting  the  credit- 
or's claim  are  the  assignees,  who  are  bound  by  all  the  equities  which 
affected  the  bankrupts.  To  deny  to  the  creditor  the  benefit  of  this 
security  would  be  an  injustice  which,  if  unavoidable,  would  be  much 
to  be  regretted.  In  giving  effect  to  it  I  act  upon  the  well-known  rules 
of  equity  in  this  country,  and  do  not  violate  or  interfere  with  any  law 
or  rule  of  property-  in  Scotland,  as  I  only  order  that  to  be  done  which 
the  parties  may  by  that  law  lawfully  perform. 

I  reverse  the  judgment  of  the  Court  of  Review,  giving  to  the  creditor 
payment  of  his  debt  out  of  the  proceeds  of  the  estate. 

Judgment  of  the  Court  of  Remexc  revi^rsed. 


ACKER  V.   PRIEST. 
Supreme  Court  of  Iowa.     1894. 

[Reported  92  Iowa,  610.] 

Deemer,  J.^  The  plaintiffs  in  the  equity  suit  are  the  heirs  at  law  of 
Elizabeth  Priest,  deceased,  and  tlie  defendant,  Stephen  C.  Priest,  is  their 
father.  Mrs.  Priest  was  a  daughter  of  one  Joseph  Abrams.  Josepli 
Abrams  had  one  son  and  three  daughters,  besides  Mrs.  Priest.  In  the 
month  of  July,  1884,  Abrams,  who  was  then  living  in  the  State  of  Kan- 
sas, concluded  to  make  a  partial  distribution  and  advancement  of  his 
property  to  his  children.  He  was  then  the  owner  of  two  farms  in  Kan- 
sas, one  of  which  was  known  as  his  "  Home  Farm,"'  and  the  otlier 
was  occupied  by  defendant  Priest  and  his  family.  Thomas  W.  King, 
another  son-in-law,  owned  and  occupied  another  and  a  third  faim  in 
the  same  count}'  as  the  other  two.  In  order  to  carr}'  out  his  purpose, 
and  make  an  equal  distribution  of  propert}-  to  his  daughters,  Abrams 

^  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT.  IV.]  ACKER   V.    PRIEST.  201 

made  arrangements  with  King  to  exchange  the  home  farm,  vahied  at 
$.'^,000,  for  the  King  place,  at  the  agreed  price  of  84.000.  Prior  thereto, 
however,  Abrams  had  had  a  conversation  with  defendant  Priest,  in 
which  he  told  him  he  intended  to  give  hira  a  farm.  After  making 
arrangements  with  King,  Abrams  informed  defendant  that  he  had  an 
opportunity  to  trade  the  home  farm  for  King's  land,  and  directed  de- 
fendant to  go  and  look  at  the  farm,  and  if  it  suited  him  he  (Abrams) 
would  make  the  exchange.  Defendant,  after  examining  the  place,  was 
pleased  with  it,  and  so  informed  Abrams,  and  Abrams  made  the  con- 
templated exchange.  Abrams  deeded  the  home  farm  to  King,  and 
King,  b}'  direction  of  Abrams,  and  with  the  knowledge,  direction,  and 
consent  of  the  deceased,  Mrs.  Priest,  made  a  deed  to  his  place  to  the 
defendant  Priest.  This  last  deed  was  a  warrant}-  deed,  in  the  usual 
form,  and  for  the  expressed  consideration  of  $-1,000.  Shortly  after  the 
making  of  these  deeds,  the  defendant  moved  onto  the  King  farm,  and 
used  and  occupied  it  for  a  year  or  more,  when  he  sold  it,  and  with  the 
proceeds  purchased  a  farm  in  Cass  County,  Iowa,  from  one  Isabella 
Goodale.  The  deed  to  the  Cass  Count}'  land  was  taken  in  the  name  of 
the  defendant  with  the  knowledge  and  consent  of  his  wife.  Defendant 
and  his  wife  immediately  took  possession  of  the  Cass  County  land,  and 
occupied  and  used  the  same  until  the  death  of  his  wife,  in  April,  1888. 
After  the  death  of  the  wife,  and  in  May,  1891,  the  defendant  sold  the 
land  in  Cass  County,  and  at  the  time  of  the  commencement  of  this  suit 
was  in  possession  of  a  large  part  of  the  proceeds  of  the  sale.  Plaintiffs 
claim  that  the  defendant  at  all  times  had  the  title  to  the  Kansas  land 
and  to  the  land  in  Cass  County  in  trust  for  his  wife,  Elizabeth  V.  Priest, 
and  that  they,  as  her  heirs  at  law,  are  entitled  to  have  a  trust  impressed 
upon  the  funds  now  in  the  hands  of  the  defendant,  arising  out  of  the 
sale  of  the  Cass  County  land.  Defendant  Isaac  Dickerson  was  made  a 
party  to  the  suit  because  of  his  having  possession  of  some  of  the  funds 
arising  from  the  sale  of  the  land  in  this  State.   .   .   . 

Plaintiffs  do  not  —  nor,  indeed,  could  they,  under  the  statutes  of 
either  Kansas  or  of  this  State  —  claim  an  express  trust  in  the  land,  or 
the  proceeds  thereof.  Their  claim  is  th^t  from  the  transactions  between 
the  parties,  as  proved,  there  arose  an  implied,  a  resulting,  or  a  con- 
structive trust,  which  the  law  will  recognize  and  enforce.  We  turn  then 
to  the  evidence,  and  find  that  while  it  was  the  intention  of  Abrams  to 
make  a  partial  distribution  of  his  estate  among  his  iieirs,  yet  it  did  not 
appear  to  him  to  be  important  to  whom  he  made  the  deeds,  —  whether 
to  his  daughters,  in  their  own  names,  or  to  their  husbands.  The  deed 
to^he  home  farm  was  made  to  King,  the  husliand  of  one  of  his  daugli- 
ters,  and  tiie  deed  to  tlie  King  farm  was  made  direct  to  defendant 
Priest.  Abrams  had  previously  spoken  to  defendant  about  giving  him 
a  farm,  and  while  the  deed  was,  no  doubt,  made  so  as  to  place  all  his 
children  on  an  equality,  it  is  quite  evident  to  us  that  it  was  wholly 
immaterial  to  hira  to  whom  the  deed  should  be  made.  Before  hav- 
ing the  deed  made  to  defendant,  Abrams  spoke  to  his  daughter,  Mra 


I 


202  ACKER    V.    PRIEST.  [CHAP.  VII. 

Priest,  about  how  the  deed  should  be  made,  and  "  she  said  to  make  it 
to  her  husband  ;  it  was  all  the  same."  Again,  Abrams  testifies,  "  My 
daughter  gave  no  reason  [for  making  the  deed  to  her  husDand],  except 
that  it  would  be  all  right,  recognizing  him  as  her  husband."  Even  if 
Abrams  intended  the  deed  to  be  for  the  benefit  of  Mrs.  Priest  and  her 
children,  as  he  saj's,  he  did  not  so  state  to  defendant,  and  defendant 
had  no  knowledge  but  that  he  was  to  take  the  beneficial  as  well  as  the 
legal  estate.  Abrams  directed  King  to  make  the  deed  to  defendant, 
and  King  liad  no  conversation  whatever  with  defendant. 

Applying  these  facts  to  the  statutes  of  Kansas,  before  quoted,  with 
reference  to  the  creation  of  trusts,^  and  it  is  clear  that  defendant  took 
an  absolute  title  to  the  land  deeded  him  by  King,  unincumbered  with 
an}-  trust.  It  is  contended,  however,  that  the  laws  of  Kansas  have  no 
application  to  this  case,  that  the  statutes  above  quoted  relate  simply  to 
the  remed}',  and  that  the  /e,33 /or/ governs.  Without  deciding  this  ques- 
tion, so  far  as  it  relates  to  the  statute  of  frauds,  for  it  is  not  necessary 
to  a  determination  of  the  case,  and  passing  it  with  the  single  remark 
that  where  the  statute  relates  simpl}-  to  the  remedy,  and  does  not  make 
the  parol  contract  void,  as  is  the  case  with  the  statute  in  question,  there 
is  much  force  in  appellants'  position,  we  are  clearly  of  the  opinion, 
however,  that  the  other  statutes  with  reference  to  the  creation  of  trust 
estates  are  binding,  for  they  go  to  the  validity  and  operation  of  the  con- 
tract, and  of  the  alleged  trust  in  the  land.  It  is  familiar  doctrine 
that  the  law  of  the  place  where  the  contract  is  made  is  to  govern  as  to 
its  nature,  validity,  obligation,  and  interpretation,  and  the  law  of  the 
forum  as  to  the  remedy.  Bank  v.  Donnally,  8  Pet.  316  ;  Scudder  v. 
Bank,  91  U.  S.  406  ;  Burchard  v.  Dunbar,  82  111.  450.  It  is  also  every- 
where acknowledged  that  the  title  and  disposition  of  real  property  are 
exclusivelj'  subject  to  the  laws  of  the  country  where  it  is  situated,  which 
can  alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one 
person  to  another.  Kerr  v.  Moon,  9  Wheat.  565  ;  McCormick  v.  Sul- 
livant,  10  Wheat.  196.  And  a  title  or  right  in  or  to  real  estate  can  be 
acquired,  enforced,  or  lost  only  according  to  the  law  of  the  place  where 
such  propert}'  is  situated.  Bentley  v.  Whittemore,  18  N.  J.  Eq.  373  ; 
Hosford  V.  Nichols,  1  Paige,  220  ;  Williams  v.  Maus,  6  Watts,  278  ; 
Wills  V.  Cowper,  2  Oliio,  124. 

If  we  are  correct  in  our  premises,  it  necessaril}'  follows,  as  a  conclu- 
sion, that  under  the  laws  of  Kansas  there  was  no  trust  created  by  law 
in  the  Kansas  land,  even  if  it  be  said  that  Mrs.  Priest  furnished  the 
consideration  paid  for  the  land,  because  there  was  no  agreement  on 
the  part  of  the  defendant  that  he  should  hold  the  title  in  trust  for  his 
wife.^ 

1  Gen.  St.  Kan.  1868,  c.  114,  §  6.  When  a  conveyance  for  a  valuable  consideration 
is  made  to  one  person,  and  the  consideration  thereof  paid  by  another,  no  use  or  trust 
shall  result  in  favor  of  the  latter,  Imt  the  title  shall  vest  in  the  former,  subject  to  the 
provisions  of  the  next  two  sections.  —  Ed. 

^  The  court  farther  held  that  apart  from  the  statutes  of  Kansas  there  was  no  trust. 
Ace.  Depas  v.  Mayo,  11  Mo.  314  ;  renfield  i-.  Tower,  1  X.  I).  21fi.  —  En. 


I 


SECT.  IV.]  PURDOM  V.   PAVEY.  203 


PURDOM   i\  PAVEY, 
Supreme  Court  of  Canada.     1896. 

[Reported  26  Canada,  412.] 

This  action  was  brought  by  Pavey  &  Co.,  creditors  of  one  Ebenezer 
Davidson.  The  said  Davidson  had  made  a  general  assignment  for  the 
benefit  of  his  creditors ;  the  assets  were  insufficient  to  pay  the  debts, 
and  a  balance  was  due  these  plaintiff's.  Afterwards  Davidson  became 
entitled  to  land  in  Oregon  ;  he  conveyed  this  land  to  his  father,  who 
gave  to  Purdom  a  mortgage  on  the  land  equal  to  the  amount  of  the 
purchase-money  named  in  the  deed.  The  plaintiffs  alleged  that  Purdom 
took  said  mortgage  as  a  trustee  for  Davidson,  in  pursuance  of  a  fraudu- 
lent scheme  to  defraud  plaintiffs  and  other  creditors  of  Davidson  ;  and 
prayed  that  Purdom  should  be  declared  a  trustee  for  Davidson,  and 
that  the  money  due  on  the  mortgage  note  should  be  ordered  paid  into 
court  for  the  benefit  of  the  plaintiffs.  The  defendants  demurred.  From 
a  judgment  of  the  Court  of  Appeal  of  the  Province  of  Outario,  over- 
ruling the  demurrer,  the  defendants  appealed  to  this  court.  ^ 

Strong,  C.  J.  So  far  as  the  lands  are  concerned,  the  validity'  or 
invalidity  of  this  transaction  must  depend  on  the  lex  rei  sitce,  —  the 
law  of  the  State  of  Oregon,  —  and  there  is  no  allegation  that  according 
to  that  law  a  constructive  trust  by  operation  of  law  would  arise  by  reason 
of  the  intent  to  hinder  and  delay  creditors,  or  that  even  an  express 
trust  must  necessarily  enure  to  the  benefit  of  or  be  available  for  the 
satisfaction  of  creditors.   .   .   . 

Then  whether  the  allegation  of  a  "trust"  of  the  purchase-money  se- 
cured by  the  mortgage  which  the  plaintiffs  allege  is  to  be  considered  as 
an  averment  of  a  trust  arising  by  operation  of  law  consequent  upon  the 
illegality  of  the  transaction  or  as  an  allegation  of  a  conventional  express 
trust,  in  either  case  the  question  would  depend  on  the  lex  rei  sitce,  and 
from  this  alone  it  follows  that  the  forum  of  the  situs  is  the  proper  forum. 

In  this  last  aspect  of  the  case,  He  Hawthorne,  Graham  v.  Masse}', 
23  Ch.  Div.  743,  and  Norris  v.  Chambres,  29  Beav.  246,  appear  to  me 
to  be  authorities.  Appeal  allowed  with  costs. 

i  This  short  statement  is  substituted  fur  that  of  the  Kepurter.  Part  of  tliu  opiuion 
only  is  giveu.  — Ed. 


204  SIEBBERAS    V.   DE    GERONINO.  [CHAP.  VII. 


SIEBBERAS  v.  DE  GERONINO. 

Court  of  Cassation,  Palermo.     1894. 

[Reported  Journal  du  Palais,  1895,  IV.  28.] 

The  Court.  The  Court  of  Appeal  regards  as  nullified  the  trust  for 
the  Italian  family  Siebberas  of  property  in  Great  Britain,  by  virtue 
of  the  repealing  law  of  1818,  of  Article  889  of  the  Italian  Civil  Code, 
and  of  Article  24  of  the  Temporar}'  Law  of  November  30,  1865.  It 
permits  the  application  of  the  Italian  law  to  this  propertj'.  Its  judg- 
ment is  clearly  erroneous.  Every  sovereignty  which  exists  in  the  great 
famil}'  of  nations  is  essentially  autonomous  and  independent,  and  the 
right  of  each  is  limited  by  the  equal  right  of  the  others.  This  sover- 
eignty is  shown,  first,  in  dealings  between  citizens  who  are  subject  to 
the  same  sovereign.  It  is  shown  in  a  second  aspect  in  dealings  with 
citizens  who  are  subject  to  another  sovereign  ;  under  this  second  as- 
pect science  considers  every  sovereignty  as  an  international  person 
capable  of  rights  and  duties.  There  is  no  doubt  but  that  by  reason  of 
its  autonom}'  every  sovereignty  considered  under  the  first  aspect  gov- 
erns for  itself  its  organization,  its  administration,  and  the  provisions 
intended  to  protect  the  interests  of  the  people  and  of  the  country  ; 
laws  being  only  the  expression  of  the  conscience  of  the  people  and  of 
the  needs  of  the  nation,  and  requiring  to  be  in  conformity  with  the 
customs,  the  traditions,  the  degi'ee  of  civilization,  and  the  racial,  plnsi- 
cal,  and  moral  constitution  of  the  people.  On  the  other  hand,  laws 
should  be  the  necessary  and  progressive  development  of  the  civilization 
and  needs  of  the  people,  in  order  to  be  found  in  accordance  with  them 
and  to  grow  with  their  development.  It  follows  that  laws,  because  of 
the  reasons  which  have  led  to  their  adoption,  can  have  effect  only  in  the 
territory  ruled  by  the  sovereign  which  has  promulgated  them. 

These  principles,  sound  as  they  are  for  laws  in  general,  are  particu- 
larly so  for  those  which  concern  the  internal  public  law  and  the  social 
organization,  among  which  we  must  place  those  which  authorize  or  for- 
bid the  creation  of  trusts.  They  are  essentially  territorial  in  character, 
and  have  to  do  only  witli  citizens  who  are  within  the  territory  of  the 
sovereign  and  with  property  situated  within  the  same  territory.  The 
Court  of  Appeal,  therefore,  was  wrong  in  holding  tliat  trusts  established 
over  property  in  a  foreign  country  are  null  for  the  sole  reason  that  the 
defendant  is  an  Italian  citizen.  The  Italian  law  has  dissolved  trusts, 
entails,  and  other  settlements  in  perpetuity  established  according  to 
previous  law  ;  but  only  those  which  existed  within  the  kingdom,  and 
not  those  which,  established  in  another  territory,  are  subject  to  another 
autonomous  and  independent  sovereign.  It  is  even  more  false  to  sup- 
pose, as  the  court  appears  to  have  done,  and  as  the  defendants  in  error 
continuall}-  do,  that  the  trusts  in  this  case  should  be  considered  sub- 
jectively null  hy  reason  of  the  provisions  of  our  law,  and  as  objectively 


SECT.  IV.]  SIEBBERAS    V.    PE    GERONINO.  205 

valid  because  at  Malta,  where  the  property  is  situated,  they  are  author- 
ized. A  right  cannot  be  at  once  valid  and  null ;  and  if  an  Italian  court 
attributed  to  Italians  the  absolute  title  in  propert}-,  and  yet  held  the 
property-  subject  to  a  trust  in  the  country  where  it  is  situated,  what 
could  be  the  effect  of  such  a  decision  ?  It  could  not  be  executed  in  the 
country  of  situs,  and  would  consequently  be  a  mere  academic  opinion, 
deprived  of  juridical  and  practical  value. 

These  principles  are  not  opposed  to  Article  8  of  the  preliminary 
provisions  of  the  Italian  Civil  Code  ;  the  judgment  appealed  from  vio- 
lates the  letter  and  spirit  of  it.  This  article  concerns  itself  with  the 
Itahan  sovereignty  considered  as  an  international  person  ;  it  is  face  to 
face  with  the  ancient  doctrine,  according  to  which  foreigners  did  not 
participate  in  the  benefit  of  the  law  and  were  considered  enemies : 
adrersus  hostem  ceterna  auctoritas  esto.  Tliis  system  had  been  lim- 
ited by  the  principles  of  reciprocity  and  common  utility ;  but  these 
limitations  no  longer  correspond  to  the  progress  of  jurisprudence,  and 
the  principle  was  finally  adopted  that  a  private  right  belongs  to  the 
individual  as  an  individual.  The  Italian  sovereignty,  as  a  result,  not 
only  admits  foreigners  to  the  enjoyment  of  such  civil  rights  as  belong 
to  citizens,  but  even  goes  so  far  as  to  permit  them  to  invoke  the  law 
of  their  own  country  to  settle  successions  ;  the  statute  personal  had 
previously  regulated  only  the  succession  to  movables,  and  the  succes- 
sion to  immovables  was  regulated  by  the  statute  real.  The  Italian  law 
has  come  to  look  upon  succession  as  an  emanation  of  the  family,  as  an 
universitas  juris,  continuing  the  person  of  the  deceased.  This  pro- 
vision shows  that  the  Italian  legislature  has  intended  to  follow  the 
progress  of  private  international  law  ;  and  has  considered  that,  accord- 
ing to  the  jus  gentium,  it  is  not  contrary  to  the  exercise  of  an  auton- 
omous and  independent  sovereignty  to  admit  within  a  territory  the 
application  of  a  foreign  law,  if  this  application  is  based  upon  an  inter- 
national duty,  a  reason  of  comity,  and  the  mutual  utility  of  nations.  It 
is  to  be  noted  that  this  bold  but  eminently  liberal  principle  is  appli- 
cable only  to  foreigners.  Italian  citizens  are  subject  to  it  neither  as  to 
their  property  situated  in  Italy,  which  is  governed  by  the  provisions 
of  the  Civil  Code  in  relation  to  successions,  nor  as  to  their  property 
situated  abroad,  because  tlie  Italian  sovereignty  cannot  impose  its  au- 
thority upon  another  autonomous  and  independent  sovereignty  whicli 
is  bound  to  enforce  its  own  laws.  So  much  is  clear,  however  principle 
and  authority  may  differ  about  the  sense  of  Article  8.  We  must  also 
remember  that  a  literal  inter[)retation  is  illogical ;  a  provision  should 
be  interpreted  according  to  its  spirit,  and  Article  8  never  meant  to  pro- 
vide for  imposing  its  application  upon  foreign  sovereignties. 

It  follows  that  trusts  established  in  a  foreign  country  are  valid,  even 
if  they  are  for  the  benefit  of  Italian  citizens,  if  they  are  authorized  by 
the  law  of  their  situs.  The  Italian  law  did  not  mean  to  extend  the 
scope  of  a  mere  legislative  provision  so  as  to  cover  any  principle  of 
international  law  ;  it  has  conformed  to  the  progress  of  international  law 


206  fowler's  appeal.  [chap.  vii. 

on  the  subject  of  the  jurisdiction  of  foreign  law,  and  has  admitted  this 
jurisdiction  in  all  cases  where  it  seemed  necessary  because  of  tlie  na- 
ture of  the  rights  in  question  ;  it  has  shown  itself  generous  and  liberal, 
in  order  to  give  a  laudable  example,  and  to  invite  foreign  sovereignties 
to  adopt  the  same  rule. 

Finally,  in  spite  of  the  development  of  international  law,  it  is  not  the 
duty  of  a  sovereignty  to  abdicate  its  inherent  right  to  the  preservation 
of  its  constitution,  to  its  independence,  to  the  maintenance  of  public 
order,  and  to  all  that  ad  statiun  rei  publicm  spectat ;  so  that  in  every 
case  the  application  of  a  foreign  law  should  yield,  if  it  would  have  the 
result  of  derogating  from  the  public  laws  of  the  kingdom,  and  from 
those  which  concern  public  order  and  public  morals.  Now  the  aboli- 
tion of  trusts  in  Ital}'  is  due  either  to  political  reasons  or  to  the  eco- 
nomic principle  that  the  conveyance  of  property  should  be  free  in  the 
interest  of  the  development  of  the  general  wealth  of  the  nation  ;  so  that 
the  abolition  of  trusts  is  due  to  motives  of  public  order.  The  English 
law,  which  authorizes  trusts,  would  therefore  have  no  effect  upon  im- 
movables situated  in  Italian  territory.  But  reciprocally  the  Italian  law 
cannot  have  the  effect  of  invalidating  trusts  created  in  England,  even 
though  the  trust  estate  belongs  to  Italian  citizens,  and  though  succes- 
sion is  an  indivisible  unit. 

Judgment  of  the  Court  of  Appeal  quashed. 


FOWLER'S    APPEAL. 

Supreme  Court  of  Pennsylvania.     1889. 

[^Reported  125  Pennsylvania,  388.] 

Paxson,  C.  J.^  By  the  terms  of  this  deed  of  trust  the  trustee  is  re- 
quired to  "  pay  over  the  income  and  dividends  on  said  bonds  to  Marie 
Washburne  Fowler  (appellant).  .  .  .  And  should  the  said  Marie  Wash- 
burne  Fowler  die,  the  said  trust  herein  declared  shall  inure  to  the  ben- 
efit of  her  heirs ;  but  if  she  have  no  children  the  same  shall  revert  to 
my  estate."  There  was  a  further  direction  to  add  fifty  dollars  per  year 
out  of  the  income  to  the  principal.  It  also  appeared  that  since  the 
execution  of  this  paper  the  said  Marie  has  given  birth  to  a  child,  who 
is  now  living,  and  that  the  settler  or  donor,  Elihu  B.  Washburne,  died 
without  having  in  any  manner  exercised  the  power  of  revocation  re- 
served in  the  deed  of  trust.  The  question  is  whether  the  said  Marie 
W.  Fowler  is  entitled  to  the  corpus  of  the  trust  estate,  consisting  only 
of  corporation  bonds,  freed  and  discharged  from  the  trust.  The  court 
below  decided  that  she  was  not,  and  in  this  we  see  no  error.   .   .   . 

Nor  do  we  think  the  direction  to  accumulate  is  invalid  under  the  act 

1  Fart  of  the  o]iinioii  only  is  £;ivon.  —  Ed. 


SECT.  IV.]       FIRST   XAT'L   BANK    I'.    NATL    BltOAIAVAY    BANK. 


207 


of  18o3}  The  act  does  not  apply.  The  settler  was  a  citizen  of  Illinois 
and  died  there  ;  the  deed  of  trust  was  made  there  ;  the  securities  are 
those  of  foreign  corporations,  and  Mrs.  Fowler  is  a  citizen  of  Colorado. 
I  do  not  understand  it  to  be  denied  that  the  trust  is  valid  b}'  the  law  of 
the  State  where  it  was  made  and  of  the  State  where  it  is  enjoyed  ; 
and  the  mere  fact  that  the  trustee  happens  to  be  a  Pennsylvania  corpo- 
ration cannot  invalidate  the  trust.  The  act  of  1853  was  only  intended 
to  apply  to  our  own  citizens,  and  a  trust  intended  to  take  etfect  beyond 
our  own  territory  cannot  be  affected  by  it.  Authorities  upon  this  point 
are  not  abundant ;  at  least  they  have  been  sparingly  cited.  "We  ma}- 
refer,  however,  to  Attorney-General  v.  Stewart,  2  Mer.  161  ;  Curtis  v. 
Hutton,  14  Ves.  537  ;  Hill  on  Trustees,  457  ;  Draper  r.  College,  57  IIow. 
Pr.  269  ;  Chamberlain  v.  Chamberlain,  43  N.  Y.  433  ;  Crum  v.  Bliss, 
47  Conn.  592.     The  case  is  clear  upon  principle. 

The  decree  is  affiryned,  and  the  appeal  dismissed  at  the  costs 
of  the  a^ypellants. 


FIRST   NATIONAL   BANK   v.   NATIONAL   BROADWAY 

BANK. 

Court  of  Appeals,  New  York.     1898. 

[Reported  156  New  York,  459.] 

Appeal  from  a  judgment  of  the  Appellate  Division  of  the  Supreme 
€ourt  in  the  first  judicial  department,  entered  November  26,  1897, 
affirming  a  judgment  in  favor  of  the  defendants,  entered  upon  a  deci- 
sion of  the  court  on  trial  at  Special  Term  dismissing  the  complaint 
upon  the  merits. 

The  plaintiff  commenced  this  action  to  comi)el  the  Broadway  Bank 
to  transfer  to  its  name  certain  shares  of  capital  stock,  issued  to  and 
standing  in  the  name  of  "  Philo  P.  Motchkiss,  trustee."  The  defend- 
ant bank  denied  the  plaintiff's  ownership,  and  set  up  the  claim  of  title 
made  thereto  by  Seth  M.  Tuttle,  as  alleged  trustee  of  the  shares,  in 
succession  to  Hotchkiss.  Tuttle  was  subsequently  brought  into  the 
action  and  made  a  party  defendant,  upon  his  api)lication,  in  ordor  to 
prosecute  his  claim  of  ownership. 

Tlie  general  history  of  tiie  trust  is,  that  in  1.S57  William  II.  Imlay, 
of  Hartford,  Connecticut,  deeded  certain  Micliigan  lands  to  Chester 
Adams,  of  the  same  place,  as  trustee.     By  the  terms  of  the  trust  he  was 

1  Act  of  April  18,  18.5.3,  Pa.  P.  L.  50.3.  "  No  porsoii  or  jjorsoiis  shall,  after  tho  ])ass- 
iiig  of  this  act,  by  any  deed,  will,  or  otliorwiso,  settle  or  di.sposo  of  any  real  or  personal 
propertv,  so  and  in  such  rnannor  that  the?  routs,  i.^siie.s,  interest,  or  profits  thereof  shall 
be  wholly  or  partially  accumulated  for  any  louRor  term  than  tiic  life  or  lives  of  any 
such  trrantor  or  f^rantors,  settler  or  .settlers,  (-r  testator,  and  the  term  of  twenty-one 
years  from  the  death  of  any  such  grantor,  .setth-r,  or  testator." —  Ki>. 


208  FIRST   NAT'L   bank   v.   NAT'l    BROADWAY   BANK.       [CHAP.  VII. 

to  sell  the  lands  and  to  invest  the  net  proceeds  in  good  bank  stocks  :n 
his  own  name  as  trustee,  with  power  to  sell  such  stocks  and  to  reinvest 
in  other  bank  stocks.     He  was  to  pay  the  net  income  equally  to  Imlay's 
three  unmarried  daughters,  for  their  sole  and  separate  use,  etc.     The 
issue  of  any  daughter  was  to  take  in  fee  the  shai-e  held  in  trust  for  the 
mother,  upon  her  death,  and  upon  the  death  of  one  or  more  of  the  daugh- 
ters, without  issue  surviving,  the  trust  share  or  shares  were  to  vest  in 
the  survivors  or  survivor.     Adams,  the  trustee,  died  subsequently,  leav- 
ino'  a  will,  wherein  he  appointed  one  Bartholomew  as  his  successor  in 
the  trust,  pursuant  to  a  power  to  that  effect  contained  in  the  trust  deed. 
Subsequent!}-,  Bartholomew  resigned  as  trustee,  and  Hotchkiss  was,  by 
an  order  of  the  Probate  Court  of  Hartford,  Connecticut,  appointed  trus- 
tee in  succession.    At  the  time  of  his  appointment,  Alice,  one  of  Imlay's 
daughters,  had  died,  without  issue,  and  her  one  third  share  in  the  trust 
had  vested  in  her  two  surviving  sisters,  Isabel  and  Georgiana.     Isabel 
had  also   died,  but  left  issue  surviving,  to  whom  her  portion  of  the 
trust  estate   was   paid.      Georgiana  married  Hotchkiss  and  has  two 
dauohters.      When  Hotchkiss  was  substituted  as  trustee,  under  the 
deed  of  trust,  the  defendant  Broadway  Bank  transferred  the  stock  in 
question  into  his  name,  upon  receiving  the  order  mentioned,  which  re- 
ferred to  the  trust  deed.     Some  time  after  his  appointment,  Hotchkiss, 
who  held  himself  out  as  manager  of  "  Hotchkiss  &  Co.,"  presented  a 
note  for  $12,000  of  that  firm;  which  the  plaintiff  discounted  upon  the 
pledge  of  collateral  securities,  which  included  the  stock  in  question  and 
which  were  taken  up,  by  means  of  the  proceeds  of  the  discounted  note, 
from  the  Home  Insurance  Company,  by  which  company  the  collaterals 
had  been  held  to  secure  a  former  note  of  Hotchkiss  &  Co.     The  plain- 
tiff received  at  the  time  a  writing  signed  by  Georgiana  Hotchkiss,  which 
authorized  her  husband  to  borrow  on  the  ''stocks  standing  in  his  name 
as  trustee  for  my  benefit  and  owned  by  me."     Subsequently,  upon  de- 
fault in  payment  of  the  note,  the  plaintiff,  pursuant  to  the  terms  of  the 
stock  note  discounted  by  it,  sold  the  stocks  at  public  auction  and  pur- 
chased them  thereat.     Upon  requesting  of  the  defendant  bank  a  transfer 
of  the  stock  and  the  issuance  of  a  new  certificate,  the  request  was  re- 
fused, and  thereupon  this  action  was  instituted.     Hotchkiss,  having 
been  convicted  of  grand  larceny  and  sent  to  prison,  was  removed  as 
trustee  upon  the  application  of  Alice  Richards,  a  daughter  of  Georgiana 
Hotchkiss,  the  beneficiary  of  the  deed  of  trust,  and  Tuttle  was  appointed 
trustee  in  his  stead  by  an  order  of  the  Supreme  Court  in  this  State. 
The  concern  of  Hotchkiss  &  Co.,  whose  note  was  discounted  by  the 
plaintiff,  appears  to  have  consisted  only  of  Georgiana  I.  Hotchkiss,  the 
business  being  managed  by  Philo  P.  Hotchkiss.^ 

Gray,  J.  Upon  these  facts,  which  are  undisputed,  the  courts  below 
have  held  that  Tuttle  was  entitled  to  the  possession  and  transfer  of  the 
stock  and  to  the  accrued  dividends  thereon.  The  conclusion  as  to  the 
title  to  the  property  was  reached  upon  the  theory  that,  as  the  plaintiff 

1  Arguments  of  counsel  and  part  of  the  opinion  are  omitted.  —  Ed. 


SECT.  IV.]       FIRST   NAT'L   BANK    V.    NAT'L   BROADWAY    BANK.  209 

received  the  stock  with  constructive  notice  that  it  was  the  subject  of  a 
trust,  no  title  was  acquired  thereto  which  it  could  enforce  ;  for  the  pledge 
was  contrary  to  the  terms  of  the  trust.     I  think  that,  so  far,  we  should 
ao-ree  in  the  decision  of  the  learned  justices  below.  .  .   . 
°But  I  do  not  think  we  should  affirm  the  judgment  below,  in  so  far  as 
it  denies  the  plaintiff's  claim  upon  the  life  interest  of  Georgiana  Hotch- 
kiss  in  the  dividends  accumulated  and  to  be  declared  upon  the  stock. 
The  learned  justices  below  have  denied  the  claim  upon  the  ground  that 
her  interest,  as  beneficiary  of  the  trust,  was  inalienable  under  the  Re- 
vised  Statutes,  1  R.  S.  729,  §  63.     That  would  be  perfectly  true,  if  the 
trust  could  be  regarded  as  governed  by  the  laws  of  this  State  ;  but  I  am 
unable  to  so  regard  it.     The  trust  was  created  in  Connecticut,  by  a  res- 
ident of  that  State,  in  favor  of  his  children  there.     Adams,  the  trustee 
named  in  the  deed  of  trust,  was  domiciled  in  Connecticut,  and  by  his 
will,  probated  there,  he  appointed  his  successor  in  the  trust  as  directed 
by  the  deed.     Hotchkiss  was  appointed  trustee,  in  further  succession,, 
by  an  order  of  a  court  of  that  State.     The  transaction  of  loan  by  the 
plaintiff,  itself,  was  in  New  Jersey.     Under  these  circumstances,  I  do 
not  see  how  the  questions  relating  to  the  interests  of  the  beneficiary  in 
the  trust  are  to  be  dealt  witli  according  to  the  provisions  of  our  statutes. 
AVhat  the  law  of  the  State  of  Connecticut  may  be  concerning  them,  as 
affected  by  any  legislative  enactments,  we  are  not  informed  by  the  proofs 
in  the  case.     Section  63  of  our  Revised  Statutes,  1  R.  S.  730,  effected 
a  change  in  the  common-law  rule,  which  permitted  the  alienation  of 
their  interests  by  cestuis  que  trustent,  and,  in  the  absence  of  proof  upon 
the  subject,  we  may  not  indulge  in  the  presumption  that  the  prohiliitory 
provisions  of  our  statutes  have  been  enacted  in  Connecticut.     Leonard 
V.  Navigation  Co.,  84  N.  Y.  48  ;  Vanderpoel  iu  Gorman,  140  N.  Y.  563. 
It  is  to  be  presumed  that  the  common-law  rules,  in  equity,  still  obtain 
there.     Under  the  common  law,  a  wife  had  complete  capacity  to  dispose 
of  her  separate  estate,  and,  if  she  was  tlie  beneficiary  of  a  trust,  she 
was  capable  of  charging  her  equitable  interest,  to  the  extent  that  it  was 
not  inconsistent  with  the  terms  of  the  trust  instrument.     L'Amoureux 
V.  Van  Rensselaer,  1  Barb.  Ch.  34-37  ;  Yale  v.  Dederer,  18  N.  Y.  265  ; 
Dyett  V.  Trust  Co.,  140  N.  Y.  54-65.     By  this  deed  of  trust,  the  settlor's 
only  apparent  intention,  as  to  his  daughters'  enjoyment  and  disposition 
of  their  interests,  is  that  they  should  have  the  sole  and  separate  use, 
free  from  their  husbands'  control  or  interference.     When  the  plaintill 
made  the  loan  of  money  upon  the  note  of  Hotchkiss  &  Co.,  it  was  upon 
a  written  authorization  of  Georgiana  Hotchkiss  to  her  luisband  that  he 
might  "borrow"  on  certain  named  stocks  "standing  in  his  name  as 
trultee  for  my  benefit  and  owned  by  me."     She  was  the  person  dealing 
under  the  firm  name  of  Hotchkiss  &  Co.,  and  had  filed  her  certificate 
to  that  effect,  as  required  by  the  laws  of  the  State.     Thus,  we  have  a 
transaction  entered  into  by  the  plaintiff,  presumal)ly,  in  reliance  upon 
the  representations  of  Georgiana,  the  ])oneficiary,  and  for  the  benefit  of 
a  business  concern,  which  was  h■<,^'^lly  hers.      I  tliink  she  is  estopped  by 

VOL.    H.  —  11 


210  DE    NICOLS    V.    CURLIEK.  [cHAr.  VII. 

her  acts  from  setting  up  an}-  claim  to  tlie  income  upon  the  stock,  re- 
ceived and  which  may  be  hereafter,  during  her  life,  received  b\-  wa}'  of 
dividends,  by  the  trustee.  If  this  were  not  so,  then  the  court  would  be 
aiding  her  in  the  perpetration  of  a  fraud  upon  the  plaintiff.  That  the 
writing  signed  by  her,  and  upon  which  the  plaintiff's  officers  acted  in 
dealing  with  Hotchkiss,  was  a  disposition,  or  pledge,  by  his  wife  and 
beneficiary,  of  her  separate  interest  in  tbe  trust,  1  entertain  no  doubt, 
and  to  hold  otherwise  would  be  bighl}'  inequitable.  I  am  not  without 
some  hesitation  upon  this  phase  of  the  case  ;  because  I  am  mindful  of 
the  policy  of  the  State,  as  declared  in  the  enactment  of  a  statutoi'y  pro- 
vision, so  beneficent  and  protective  in  its  character  as  section  63  ;  but 
I  cannot  regard  this  case  as  one  which  comes  within  the  sphere  of  any 
State  policy.  I  look  upon  the  question  as  simply  one  of  a  trust  created 
in,  and  governed  b}'  the  laws  of,  a  foreign  State,  as  presumed,  if  not 
proved,  and  nothing  appears  to  prevent  our  giving  effect  to  the  act  of 
•Georgiana  Hotchkiss,  the  beneficiar}-,  in  disposing  as  she  did  of  her  in- 
terest. The  conclusion  I  reach,  therefore,  is  that  this  judgment  should 
be  modified,  so  that  it  shall  adjudge  that  the  dividends  upon  the  stock 
in  question,  accumulated  and  to  be  declared,  shall  be  paid  to  the  plain- 
tiff, during  the  lifetime  of  Georgiana  I.  Hotchkiss,  and,  as  so  modified, 
the  judgment  should  be  aflBrmed,  without  costs  of  this  appeal  to  any 
party,  save  to  the  defendant  Broadway  Bank,  to  be  paid  out  of  the 
fund. 

O'Brien,  Bartlett,  and  Haight,  JJ.,  concur;  Parker,  C.  J.,  Mar- 
tin, and  Vann,  JJ.,  dissent.  Judgment  modified} 


SECTION  V. 

MARITAL    PROPERTY. 


DE  NICOLS   V.    CURLIER. 

House  of  Lords.     1899. 

[Reported  [1900]  Appeal  Cases,  21.] 

Earl  of  Halsbury,  L.  C.  My  Lords,  it  is  not  necessary  to  state 
with  great  minuteness  how  the  question  in  the  present  appeal  arises. 
It  is  enough  to  say  that  two  French  subjects  were  married  according  to 
the  laws  of  France  on  May  30,  1854.  No  marriage  contract  or  instru- 
ment in  writing  was  executed  by  either  of  the  parties.  The  parties 
lived  together,  and  in  the  year  1863  they  came  to  England,  and  in  the 

1  Ace.  Riddle  v.  Hudgius,  58  Fed.  490.  —Ed. 


SECT,  v.]  ^^   NICOLS    I'.    CURLIER.  -1^ 

year  1865  the  husband  obUihied   the   status  of  a  naturalized  British 

^"xhf  whole  dispute  turns  oh  the  question  whether  the  changed  domicil 
and  naturalization  of  the  husband  affected  the  wife's  rights  so  as  to 
.We  the  husband  the  power  to  dispose  of  all  the  movable  property  by 
^•iU  instead  of  being  restricted  to  the  power  of  disposing  o  only  one- 
half  of  it,  as  he  undoubtedly  would  have  been  so  restricted  by  the 
French  law  if  the  French  law  is  decisive  of  the  question. 

If  this  is  the  law  1)V  which  the  matter  is  to  be  governed  it  cannot  be 
denied  that  the  appellant  here  must  succeed,  and  it  is  a  httle  d.tticult 
to  understand  upon  what  principle  contracts  and  obligations  ali'eady 
existin-  u'ter  se  should  be  affected  by  an  act  of  one  of  the  contrac  ing 
narties°over  which  the  other  party  to  the  contract  has  no  control  what- 
ever And  indeed,  it  is  not  denied  that  if,  instead  of  the  law  creating 
these  obligations  upon  the  mere  performance  of  the  marriage,  the  par- 
ties had  tiremselves  bv  written  instrument  recited  in  terms  the  very  con- 
tract the  law  makes  for  them,  in  that  case  the  change  of  domicil  could 
not  have  affected  such  written  contract.  I  am  wholly  unable  to  under- 
stand why  the  mere  putting  into  writing  the  very  same  contract  which 
the  law  created  between  them  without  any  writing  at  all  should  bar  the 
husband  from  altering  the  contract  relations  between  himself  and  his 
wife  •  when  if  the  law  creates  that  contract  relation,  then  the  husband 
is  not  barred  from  getting  rid  of  the  obligation  which  upon  his  marriage 
the  law  affixed  to  the  transaction. 

A  written  contract  is  after  all  only  the  evidence  of  what  the  parties 
have  agreed  to,  and  it  would  seem  to  be  of  no  sui)erior  force  as  evi- 
dencing the  agreement  of  the  parties  than  a  known  consequence  ot 
enterincr  into  the  married  status.  I  not  only  do  not  understand,  but  1 
shouUrdecline  to  assent  to  any  such  view,  unless  I  am  compelled  by 
authoritative  decision  or  statute  to  adopt  a  view  which  to  my  mind  is 
so  entirely  unreasonable.  And  it  does  not  appear  to  me  that  any  court 
before  whom  this  qu<^stion  has  come  would  disagree  with  me  as  to  its 
being  unreasonable. 

TlTe  Master  of  the  Rolls  himself  says  :  -  It  is  not  altogether  sat.slac- 
torv  to  hold  that  a  change  of  domicil  cannot  affect  an  express  contract 
embo.lving  the  law  of  the  matrimonial  domicil,  but  that  a  change  of 
domicil  does  affect  the  application  of  that  law  if  not  embodied  in  an 

express  contract."  .     ,  .    ,.  t  ...  i 

My  Lords,  I  should  think  that,  in  onler  to  be  binding  on  your  Lo.d- 
ships,  a  previous  decision  must  be  in  principle,  an<l,  as  applicable  to 
the  same  circumstances,  identical;  and  it  ai.pears  to  me  that  the  case 
by  which  the  Master  of  tiie  Rolls  thought  hi.nsrlf  b.,und  (Lashley  r. 
Hog,  4  Paton,  581)  is  quite  distingui.shable  both   n,    principle  and   in 

circumstances.  .  ,,     i-        i 

To  omit  other  questions,  the  cardinal  dislinctu.n  between  the  Irench 
and  the  Scottish  law  is  not,  I  think,  without  an  inqx.rtanl  bearing  ui.on 
1  The  Lonl  Cliiuic'llor  licro  stated  the  Frciidi  l;iw.  —  Kd. 


212  DE   NICOLS    V.    CURLIER.  [CIIAP.  VII. 

the  veiy  question  in  debate,  and  I  think  it  may  be  stated  shortly  thus  : 
If  the  wife  by  the  marriage  in  Scotland  acquired  no  proprietary  rights 
whatever,  but  only  what  is  called  a  hope  of  a  certain  distribution  upon 
the  husband's  death,  it  is  intelligible  that  that  right  of  distribution,  or 
by  whatever  name  it  is  called,  should  be  dependent  upon  the  husband's 
domicil,  as  following  the  ordinary  rule  that  the  law  of  a  person's  domi- 
cil  regulates  the  succession  of  his  movable  property.  But  if  by  the  mai-- 
riage  the  wife  acquires  as  part  of  that  contract  relation  a  real  proprietary- 
right,  it  would  be  quite  unintelligible  that  the  husband's  act  should  dis- 
pose of  what  was  not  his;  and  herein,  I  think,  is  to  be  found  the  key  to 
Lord  Eldon's  judgment.  He  says  (4  Paton,  617 ) :  "  The  true  point  seems 
to  be  this,  whether  there  is  anything  irrational  in  saying  that  as  the  hus- 
band, during  the  whole  of  his  life,  has  the  absolute  disposition  over  the 
propert}',  that  as  to  him,  whom  the  policy  of  the  law  has  given  the  di- 
rection of  the  family  as  to  the  place  of  its  residence,  that  he  who  has 
therefore  this  species  of  command  over  his  own  actions,  and  over  the 
actions  and  property  which  is  his  own,  and  which  is  to  remain  his  own, 
or  to  become  that  of  his  family  according  to  his  will  —  why  should  it 
be  thought  an  unreasonable  thing,  that,  where  there  is  no  express  con- 
tract, the  implied  contract  shall  be  taken  to  be  that  the  wife  is  to  look 
to  the  law  of  the  country  where  the  husband  dies  for  the  right  she  is  to 
enjo}'  in  case  the  husband  thinks  proper  to  die  intestate  ?  " 

It  will  be  observed  that  the  whole  point  of  what  Lord  Eldon  argues 
is  that  the  whole  of  the  property,  apart  from  express  contract,  is  abso- 
lutely and  entirel}^  the  husband's,  and  that  as  by  law  he  can  dispose  of 
it  as  he  will,  it  is  not  unreasonable  that  he  should  be  at  liberty  to  do 
something  which  by  its  legal  effect  will  change  what  I  think  are  inac- 
curately described  as  the  rights  of  the  wife,  but  are  accuratel}-  described 
as  what  would  have  been  the  rights  of  the  wife  if  no  change  had  taken 
place,  because  in  substance  she  has  until  the  husband's  death  no  rights 
at  all. 

Doubtless  it  is  true  that,  according  to  the  authorities  on  Scottish  law, 
the  right  of  the  wife  is  no  right  at  all  in  its  strict  sense.  When  speak- 
ing of  the  Jus  mariti  it  is  described  as  a  legal  assignation  to  the  hus- 
band, and  in  commenting  on  this  authority-,  the  late  Mr.  Fraser,  while 
at  the  Scottish  Bar,  in  his  book  on  the  Law  of  Husband  and  Wife,  2d 
ed.  vol.  i.  p.  677,  says :  '•  At  a  very  early  period  of  our  law,  the  dis- 
tinction between  the  two  rights  was  recognized.  The  right  of  admin- 
istration was  regarded  as  being  nothing  more  than  its  name  imports  - — 
a  right  of  administering  the  property  of  the  spouses  ;  while  the  jus 
mariti  was  something  separate  and  superior,  its  purpose  being  to  trans- 
fer the  property  from  one  spouse  to  the  other.  The  distinction  is  set- 
tled and  taken  in  a  number  of  cases  ranging  from  an  early  period  to 
the  present  time,  and  has  not  been  so  clearl}'  marked  in  some  institu- 
tional works,  solely  from  the  desire  of  the  writers  to  reconcile  it  with 
the  notion  of  an  absolute  veritable  co?y?m^«y*io."  ,  .  .  "  The  distinction 
is  thus  stated  in  argument  in  the  Session  Papers  of  Gowan  v.  Pursell : 


SECT,  v.]  DE   NICOLS    V.   CURLIER.  213 

The  Jus  mariti  over  the  movables  is  a  right  during  the  existence  of  the 
marriage  of  absolute  property.  The  husband  may  sell,  or  squander,  or 
wastefully  destroy  the  movables  that  fall  under  communion.'  IIow 
different  the  position  of  the  wife  is  under  the  French  law  is  sufficiently 
indicated,  in  contrast  to  the  above  extract,  by  section  1443  of  Code  Civil, 
which  enacts  that:  "  1443.  A  separation  of  property  can  only  be  judi- 
cially sued  for  by  the  wife  whose  dowry  is  in  danger,  and  when  the  disorder 
of  the  husband's  affairs  is  such  that  there  is  reason  to  fear  that  his  prop- 
erty will  not  be  sutEcient  lo  satisfy  the  wife's  rights  and  claims.  Any 
voluntary  separation  is  void."  And  if  the  propositions  are  put  shortly 
—  that  the  wife  acquires  no  proprietary  rights  by  marriage  under  the 
Scotch  law  at  all,  but  under  the  French  law  acquires  a  real  proprietary 
right — the  distinction  between  the  two  systems  is  evident  enough.  The 
communio  bonortim  in  Scotland  is  a  mere  fiction.  In  France  it  is  a 
reality,  and  in  p:ngland,  as  the  Master  of  the  Rolls  says,  the  parties  to 
the  litigation  now  being  discussed,  Mr.  and  Mrs.  Hog,  were  both  Eng- 
lish, married  in  England,  where  her  unsettled  property,  existing  and 
after  acquired,  became  the  property  of  Mr.  Hog  by  the  mere  fact  of 
the  marriage,  and  gave  Mrs,  Hog  no  proprietary  right  whatever  to  the 
movable  property-  in  question. 

Once  it  is  admitted  that  the  marriage  gives  a  proprietary  right  (and 
therein  is  the  importance  of  the  distinction  Lord  Eldon  took  between 
what  was  inaccurately  argued  in  that  case  as  a  proprietary  right  con- 
ferred by  the  fact  of  marriage  and  a  real  proprietary  right  conferred  by 
specific  contract),  the  anomaly  pointed  out  by  the  Master  of  the  Rolls  and 
sought  to  be  explained  becomes  at  once  intelligible.  It  is  only  material 
as  illustrating  what  was  the  prevailing  train  of  thought  in  the  minds 
of  Lord  Eldon  and  Lord  Rosslyn.  Both  of  them  speak  of  the  words 
"  implied  contract,"  by  which  I  presume  they  mean  implied  from  the 
relation  of  husl)and  and  wife,  and  not  unnaturally  they  deduce  the  con- 
clusion that  if  it  is  implied  from  that  relation  only  the  husband's 
change  of  domicil  may  bring  with  it  the  consequential  change  from 
such  relation. 

Here,  however,  as  I  have  endeavored  to  point  out,  the  French  mar- 
riage confers  not  only  an  implied  but  an  actual  binding  partnership  pro- 
prietary relation  fixed  by  the  law  upon  the  persons  of  the  spouses,  the 
binding  nature  of  which,  it  appears  to  me,  no  act  of  either  of  the  parties 
contracting  marriage  can  affect  or  qualify. 

I  can  only  account  for  the  absolutely  inaccurate  use  of  the  Scottish 
term  jus  rellctm  as  arising  from  a  reference  to  a  dispute  that  appears 
to  have  existed  in  the  Scottish  authors  as  to  whether  those  rights 
flowed  from  the  communion,  whereas,  to  (juote  again  from  Mr.  Eraser's 
book,  p.  671,  where  he  says  :  "  It  has  been  found  in  accordance  with 
the  opinions  of  the  French  commentators,  of  Dirlcton,  and  other  law- 
yers of  our  own  country,  that  the  jns  relict <p.  and  legit i>ti  are  in  all 
respects  the  same  ;  that  they  are  mere  casual  contingent  rights  during 
the  subsistence  of  the  marriage,  existing  llien  only  in  hope,  and  coming 


214  DE   NICOLS   V.   CURLIEK.  [CHAP.  VIL 

intopi'oper  rights  merely  at  its  dissolution  ;  tliat  they  are  not  rights  of 
divisiion  of  a  fund  already  held  in  common,  but  rights  of  debt  against 
the  husband's  executors,  constituting  the  widow  and  the  children  cred- 
itors, whose  right  comes  into  being  by  the  husband's  death,  and  second- 
ary creditors  too,  for  all  other  debts  must  be  paid  before  theirs." 

It  is,  therefore,  as  I  understand,  that  when  once  Lord  Eldon  came  to 
the  conclusion  that  the  husband  and  wife  had  become  Scottish  domiciled 
spouses,  the  property  not  affected  by  a  previous  complete  and  irrevo- 
cable right  would  pi'operly  be  distributed  according  to  Scottish  law. 

It  follows,  therefore,  if  I  am  right,  that  that  case  is  not  binding  on 
your  Lordships,  and  that  we  are  at  liberty  to  decide  the  question  now 
in  dispute,  in  accordance  with  reason  and  common  sense. 

I  therefore  move  j'our  Lordships  that  the  order  appealed  from  be 
reversed,  and  that  in  respect  of  costs,  as  I  understand  this  is  only 
one  question  in  the  summons  which  comprehends  other  questions  also 
in  debate,  the  costs  of  this  appeal  should  be  costs  in  the  summons. 

Lord  Macnaghten.  My  Lords,  in  1854  Mr.  De  Nicols,  the  testator, 
and  the  appellant,  who  is  now  his  widow,  intermarried  in  Paris.  The}' 
were  both  French  by  birth  and  both  domiciled  at  the  time  in  France. 
They  married  without  a  contract  of  marriage,  and  consequently  under 
the  law  of  France  they  became  subject  to  the  system  of  community  of 
goods. 

In  1863  Mr.  and  Mrs.  De  Nicols  left  Paris  and  came  to  London. 
They  acquired  an  English  doraicil,  and  in  1865  Mr.  De  Nicols  obtained 
a  certificate  of  naturalization  in  this  countr}'.  From  that  time  forward 
their  residence  in  England  was  continuous.  Mr.  De  Nicols  became  a 
restaurant  proprietor  in  London.  He  was  successful  in  business,  and 
amassed  a  large  fortune,  consisting  of  both  movable  and  immovable 
property. 

Mr.  De  Nicols  died  in  February,  1897,  having  made  a  will  in  the 
English  form  and  language. 

The  question  for  your  Lordships'  consideration  is  whether  Mr.  and 
Mrs.  De  Nicols  continued  subject  to  the  system  of  communit}'  of  goods 
after  they  became  domiciled  in  England.  On  the  one  hand  it  is  con- 
tended that  the  change  of  domicil  from  French  to  English  destroyed 
the  community  altogether,  and,  therefore,  that  the  testator's  will  op- 
erated upon  the  whole  of  the  property-  vested  in  him  which,  but  for  that 
change,  would  have  been  common.  On  the  other  hand  it  is  said  that 
the  commuuit}^  continued  notwithstanding  the  change  of  domicil,  and 
that  Mr.  De  Nicols  remained  bound  b}'  the  article  of  the  Code  Civil, 
which  provides  that  the  testamentary  donation  by  the  husband  cannot 
exceed  his  share  of  the  community. 

If  the  case  were  not  embarrassed  by  the  judgment  of  this  House  in 
Lashle}'  v.  Hog,  which  was  discussed  so  full}'  at  the  bar,  it  would  not,  I 
think,  present  much  difficulty. 

Putting  aside  Lashley  v.  Hog  for  the  moment,  the  only  question 
would  seem  to  be  what  was  the  effect  according  to  French  law  of  the 


SECT,  v.]  DE    XICOLS    V.    CURLIKR.  215 

marriage  of  ^Ir.  and  Mrs.  De  Xicols  without  a  marriage  contract  ? 
Upon  that  point  there  cannot,  I  think,  be  an}-  room  for  doubt.  It  is 
proved  by  the  evidence  of  M.  Lax,  the  expert  in  French  law  called  on 
behalf  of  the  appellant,  that,  according  to  the  law  of  France,  a  husband 
and  wife  intermarr3'ing  without  having  entered  into  an  antenuptial  con- 
tract in  writing  are  placed  and  stand  b}'  the  sole  fact  of  the  marriage 
precisely  in  the  same  position  in  all  respects  as  if  previously  to  their 
marriage  they  had  in  due  form  executed  a  written  contract,  and  thereby 
adopted  as  special  and  express  covenants  all  and  every  one  of  the  pro- 
visions contained  in  articles  1401  to  1496  in  Title  V.  of  the  Code  Civil, 
headed  "Of  Marriage  Contracts  and  the  respective  rights  of  spouses." 

In  support  of  this  conclusion,  M.  Lax  refers  to  the  relevant  articles 
of  the  Code  and  to  a  decision  of  the  highest  authority  pronounced  b}- 
the  Cour  de  Cassation  in  January,  1854.  The  case  as  reported  by  Sirey 
presents  the  argument  so  clearl}'  and  so  concisely  that  I  may  be  par- 
doned for  referring  to  it  more  in  detail.  The  summary  in  Sirey's 
Reports  is  as  follows  :  (Tables  Generales  [Contrat  de  Mariage]  para- 
graphe  8.)  "  The  conjugal  association  as  to  propert}-  once  formed  at 
the  time  of  the  marriage  b}'  the  operation  of  the  law  of  the  domicil  or 
nationality  of  the  husband  cannot  be  altered  later  on  either  by  a  change 
of  nationality  or  by  the  acquisition  of  a  new  personal  domicil  subse- 
quently to  the  marriage."  The  case  was  this  :  An  P^nglishman  and  an 
Englishwoman,  a  Mr.  and  Mrs.  Boyer,  were  married  in  England  with- 
out any  settlement.  Afterwards  the}-  went  to  France  and  jointly  ac- 
quired immovable  property  there.  The  husband  became  a  French  citizen. 
The  wife  died  first.  On  her  death  duty  was  demanded  and  paid  on  one- 
half  of  the  property  as  having  devolved  upon  her  children  as  her  next 
of  kin.  An  action  was  brought  for  the  return  of  the  duty.  The  tribu- 
nal of  Lille  ordered  repa3'ment,  holding  that  "the  matrimonial  compact 
in  respect  of  property  is  as  immutable  as  the  marriage  itself,  of  wliich 
it  is  an  accessory."  The  revenue  authorities  api)ealed.  The  Cour  de 
Cassation  affirmed  the  decision.  They  founded  tlicir  judgment  ujion 
their  view  of  English  law,  which  seems  right  enough,  and  upon  the  fol- 
lowing considerations :  that  "  the  rule  of  the  marriage  of  the  spouses 
Boyer  has  followed  them  to  France  when  they  went  there  to  settle  and 
tliere  acquired  property,"  and  that  '■'•  the  said  rule  has  the  same  force  as 
if  a  formal  contract  had  been  entered  into  between  the  said  spouses  for 
the  regulation  of  their  fortune." 

Although  this  reasoning  may  not  seem  quite  in  accordance  with  the 
opinion  which  Lord  P'ldon  expressed  in  Lashley  r.  Hog,  as  to  the  effect 
of  an  P^nglisli  marriage  witliout  a  settlement,  it  indicates,  I  think,  tlie 
view  which,  according  to  French  law,  would  be  taken  of  the  compact 
as  to  property  constituted  by  a  French  marriage  under  the  Code  Civil 
without  an  antenuptial  agreement. 

The  expert  who  was  called  on  behalf  of  the  executors  does  not 
attempt  to  contravene  this  conclusion  of  law.  He  endeavors  to  mini- 
mize its  effect  by  treating  it  as  a  self-evident  proposition  —  as  in  fact 


216  DE    NICOLS    V.   CURLIER.  [CHAP.  VII. 

being  nothing  more  than  what  the  Code  declares.  He  adds,  however, 
that  in  his  opinion  the  etfect  of  a  change  of  domicil  or  nationality  upon 
the  community  system  was  never  considered  by  the  framers  of  the 
Code.  That  may  be  so.  But  if  there  is  a  valid  compact  between 
spouses  as  to  their  property,  whether  it  be  constituted  by  the  law  of 
the  land  or  by  convention  between  the  parties,  it  is  difficult  to  see  how 
that  compact  can  be  nullified  or  blotted  out  merel}'  b}-  a  change  of 
domicil.  Why  should  the  obligations  of  the  marriage  law,  under  which 
the  parties  contracted  matrimony,  equivalent  according  to  the  law  of 
the  country  where  the  marriage  was  celebrated  to  an  express  contract, 
lose  their  force  and  effect  when  the  parties  become  domiciled  in  another 
country?  As  M.  Lax  points  out,  change  of  domicil  and  naturalization 
in  a  foreign  country  are  not  among  the  events  specified  in  the  Code  as 
having  the  effect  of  dissolving  or  determining  the  communit}'.  Let  us 
suppose  a  case  the  converse  of  the  present  one.  Suppose  an  English- 
man and  an  Englishwoman,  having  married  in  England  without  a  set- 
tlement, go  to  France  and  become  domiciled  there.  Suppose  that  at 
the  time  of  the  acquisition  of  the  French  domicil  the  husband  has 
£10,000  of  his  own.  Why  should  his  ownership  of  that  sum  be  im- 
paired or  qualified  because  he  settles  in  France?  There  is  nothing  to 
be  found  in  French  law,  nothing  in  the  Code  Civil,  to  effect  this  altera- 
tion in  his  rights.  Community  of  goods  in  France  is  constituted  by  a 
marriage  in  France  according  to  French  law,  not  by  married  people 
coming  to  France  and  settling  there.  And  the  community  must  com- 
mence from  the  day  of  the  marriage.  It  cannot  commence  from  any 
other  time.  It  appears  to  me,  therefore,  that  the  proposition  for  which 
the  executors  contend  cannot  be  supported  on  principle.  That,  I  think, 
was  the  view  of  the  Court  of  Appeal.  But  they  considered  that  the 
judgment  of  Lord  Eldon  in  Lashley  v.  Hog,  compelled  them  to  decide 
in  favor  of  the  executors.^ 

It  appears  to  me  that  the  case  is  not  governed  by  the  decision  in 
Lashley  v.  Hog,  and  I  think  the  appeal  ought  to  be  allowed. 

Lord  Morris,  Lord  Shand,  and  Lord  Brampton  concurred.'^ 


DE  NICOLS  V.  CURLIER. 

Chancery.     1900. 
[Reported  [1900]  2  Chancery,  410.] 

The  effect  of  the  change  of  domicil  with  reference  to  the  testator's 
movable  goods  only  having  been  determined  in  the  appeal  to  the  House 

1  The  learned  Lord  here  stated  and  commented  upon  the  case  of  Lashley  v.  Hog. 
.-Ed. 

2  The  concurring  opinions  are  omitted. 

Ace.  Blatchford  v.  Blatchford,  1  E.  Dist.  Ct.  (Cape  Colony),  365.  —Ed. 


SECT,  v.]  DE   NICOLS   V.   CUKLIKR.  217 

of  Lords,  the  surauions  now  came  on  for  fuithcr  hearing  with  refer- 
ence to  the  testator's  real  and  leasehold  property. 

Kekewich,  J.     Uudoubtetlly  the  House  of  Lords  considered  and  de- 
termined merely  the  question  whether  the  marriage  contract  affected 
movable  goods  notwithstanding  the  change  of  domicil,  and  all  that  was 
said  must  be  read  with  reference  to  that  question,  as  the  only  one  to 
which  attention  was  directed.     Albeit  so  restricted,  the  decision  pro- 
ceeded on  the  broad  principle  that  a  contract  operating  by  force  of  law 
in  the  absence  of  expression  by  the  parties  is  as  complete  and  as  obli- 
gatory as  a  contract  expressed,  and  must  have  effect  given  to  it  on  the 
same  footing.     Unless,  therefore,  there  is  some  inherent  disability  in 
some    particular   property  to  be  bound    by   such  a  contract,  it  must 
equally  be  applied  to  and  enforced  against  all  falling  within  its  scope, 
and  this  is  according  to  the  language  of  the  Code  and  the  evidence 
given  in  explanation  of  it.     On  the  present  occasion  the  court  is  asked 
to  determine  whether  in  enforcing  the  contract  it  is  right  to  include 
freehold  and  leasehold  estates  in  England  —  that  is,  what  we  terra  real 
estate  and  chattels  real,  as  distinguished  from   personal  estate  other 
than  chattels  real  which  is  covered  by  the  decision  of  the  House  of 
Lords.     Assuming  that  these  freehold  and  leasehold  estates  are  within 
the  scope  of  the  contract,  it  is  impossible  to  avoid  the  conclusion,  that 
they  are  affected  by  it,  unless,  to  repeat  what  has  been  already  said, 
there  is  a  disability  inherent  in  this  species  of  property.     There  are, 
therefore,   two   questions    for   consideration  —  one  of  fact  —  namely, 
whether  these  estates  are  within  the  scope  of  the  contract ;  the  other 
of  law,  whether  they  can  be  affected  by  it.     The  first  question  depends 
on  the  evidence  which  was  before  the  House  of  Lords,  some  further 
evidence  given  by  affidavit  and  orally  on  the  hearing  of  the  present 
application,  and  additional  evidence  adduced  under  leave  given  after 
the  hearing  in  consequence  of  a  letter  from  one  of  the  witnesses  which 
was  communicated  to  the  court.     This  evidence  was  directed  to  the 
proper  meaning  of  "  immeubles  "  in  the  French  Code.     There  is  no 
difficulty  about  the  meaning  of  the  word  as  regards  the  character  of 
property  comprised  in  it.     It  means,  broadly,  the  soil  itself  and  that 
which  is  attached  to  the  soil  as  distinguished  from  that  which,  being 
unattached,  is  therefore  movable.     As  in  our  own  system  of  law  so  in 
that  of  France,  some  things  are,  from  their  close  connection  with  the 
land,  treated  as  attached  to  it,  and,  therefore,  immovable;    but  these 
exceptions  do  not  impair  the  general  description,  and  are  of  no  im- 
portance here.     The  difficulty  which  arose  was  whether  the  term  com- 
prised immovables  abroad  —  that  is,  beyond   France.     The  words  of 
the  Code  are,  apparently,  wide  enough  to  cover  all,  wherever  situate, 
and,  if  it  could  be  treated  as  an  English  instrument  which  the  court  is 
competent  to  construe,  it  would  be  impossible  to  avoid  the  .conclusion 
{i  that  this  is  its  real  meaning.     But  to  arrive  at  a  conclusion  ros|)('cting 

the  construction  of  the  Code  in  this  particular  is  beyond  tlu!  compe- 
tence of  the  court.     It  is  a  matter  of  fact  with  which  tin;  court  can 


218  DE    NICOLS    V.    CURLIER.  [CHAP.  VIL 

only  deal  according  to  the  testimony  of  tliose  qualified  to  give  it. 
Hence  the  oral  and  the  additional  evidence  subsequently  given,  to 
which  reference  has  already  been  made.  That  evidence  has  set  the 
matter  at  rest,  and  removed  all  ditheulty.  It  ma}-  be  stated  in  general 
terms  that,  unless  an  exception  is  established  in  a  particular  case  on  the 
ground  of  public  policy  (and  there  is  no  suggestion  of  that  here),  the 
provisions  of  the  Code  as  regards  '•'  imraeubles  "  are  of  universal  appli- 
cation —  that  is,  apply  equally  to  immovable  propert\-  situate  in  France 
and  to  that  situate  in  a  foreign  country. 

Turning  now  to  the  question  whether  there  is  an}'  objection  in  law  to 
the  contract  operating  according  to  the  intention  of  the  parties  so  as  to 
bind  the  freehold  and  leasehold  estates,  one  is  at  once  confronted  by 
the  principle  wliich  distinguishes  obligations  respecting  real  estate  from 
those  which  affect  personal  estate.  That  principle  is  well  established, 
and  is  to  be  found  stated  in  different  language  in  many  books.  It  will 
suffice  to  cite  one.  In  Story  on  the  Conflict  of  Laws,  §  158,  the 
learned   author  says  this  :  — 

"  The  result  of  this  reasoning  (and  it  certainly  has  very  great  force) 
would  seem  to  be,  that  in  the  case  of  a  marriage  without  any  express 
nuptial  contract,  the  lex  loci  co/ttractus  (assuming  that  it  furnishes 
any  just  basis  to  imply  a  tacit  contract)  will  govern  as  to  all  movable 
property,  and  as  to  all  immovable  property  within  that  country,  and  as 
to  property  in  other  countries,  it  will  govern  movables,  but  not  im- 
movables, the  former  having  no  situs,  and  the  latter  being  governed  by 
the  lex  rei  sitce." 

In  the  following  section  —  159  —  he  expounds  this  subject  in  a  man- 
ner so  apposite  to  the  case  in  hand  that  it  is  wortli  wliile  to  quote  it  at 
length.     It  runs  thus  :  — 

"  Perhaps  the  most  simple  and  satisfactory  exposition  of  the  subject, 
or,  at  least,  that  which  best  harmonizes  witli  the  analogies  of  the  com- 
mon law,  is,  that  in  the  case  of  a  marriage  where  there  is  no  special 
nuptial  contract,  and  there  has  been  no  change  of  domicil,  the  law 
of  the  place  of  celebration  of  the  marriage  ought  to  govern  the  rights 
of  the  parties  in  respect  to  all  personal  or  movable  property,  wherever 
that  is  acquired,  and  wherever  it  may  be  situate  ;  but  real  or  immov- 
al)le  proi)erty  ought  to  be  left  to  be  adjudged  by  the  lex  rei  sitce,  as  not 
witliin  the  reach  of  any  extraterritorial  law.  Where  there  is  any 
special  nuptial  contract  between  the  parties,  that  will  furnish  a  rule 
for  the  case,  and  as  a  matter  of  contract,  ought  to  be  carried  into 
effect  everywhere,  under  the  general  limitations  and  exceptions  be- 
longing to  all  other  classes  of  contracts." 

According  to  the  decision  of  the  House  of  Lords,  there  is  here  a 
special  nuptial  contract  between  the  parties  ascertained  by  reference  to 
the  Code,  but  not  less  precisely  ascertained  because  it  was  not  reduced 
into  writing  in  connection  with  the  particular  marriage.  It  ought,  there- 
fore (to  adopt  the  language  just  quoted),  to  be  carried  into  effect  every- 
where, but  under  the  limitations  and  exceptions  belonging  to  all  other 


SECT,  v.]  DE    NICOLS    V.   CURLIER.  219 

classes  of  contracts,  one  of  which  is,  that  as  regards  immovables,  the 
lex  rei  sitce  must  prevail.  There  is  nothing  in  the  common  law  of 
England  to  make  the  contract,  which  we  have  already-  seen  to  be  defi- 
nite, unenforceable  respecting  the  freeholds  and  leaseholds  in  ques- 
tion, and  if  there  be  any  obstacle,  it  must  be  found  in  some  statutor}' 
provision.  There  is  none  but  the  Statute  of  Frauds,  but  that  does 
raise  a  formidable  objection.  Reference  was  made  in  argument  to  both 
the  4th  and  7th  sections  of  the  statute.  I  do  not  propose  to  consider 
which  of  them  is  the  more  applicable,  because,  without  doubt,  either 
one  or  the  other  prohibits  the  creation  of  equitable  interests  in  land, 
such  as  sought  to  be  established  here,  except  h\  writing  under  the 
hand  of  the  creator  of  the  trust.  Nevertheless,  it  is  insisted  that  the 
statute  has  no  application  to  the  circumstances  of  this  case,  and  that 
the  agreement  between  the  parties  made  in  consideration  of  marriage 
is  sufflcientlv  obligatorv  notwithstanding  the  absence  of  any  writing. 
That  is  the  point  I  am  called  upon  to  determine.  It  is  settled  that 
there  may  be  an  agreement  of  partnership  by  parol,  notwithstanding 
that  the  partnership  is  intended  to  deal  with  land,  and  that  to  an  action 
to  enforce  such  agreement  the  plea  of  the  Statute  of  Frauds  will  not 
avail.  In  such  an  action,  therefore,  the  rights  of  the  parties  to  the 
land,  their  respective  interests  in  it,  and  their  mutual  obligations  re- 
specting it,  may  and  must  be  determined  and  enforced  notwithstanding 
there  has  been  no  compliance  with  the  statutory  provision.  The  au- 
thorities for  this  are  not  numerous,  but  they  are  conclusive  —  namely, 
Forster  r.  Hale,  3  Ves.  696,  5  Ves.  308,  4  R.  R.  128;  and  Dale  v. 
Hamilton,  5  Hare,  369.  In  the  latter  case  Wigram,  V.  C,  applied  this 
ruling  to  a  case  where  the  partnership  was  intended  to  deal  exclusively 
with  land.  Lord  Lindley  in  his  work  on  Partnership,  6th  ed.  p.  89, 
says  that  the  latter  case  goes  a  long  way  towards  repealing  the  Statute 
of  Frauds,  and  that  it  is  difficult  to  reconcile  it  with  sound  [)rinciple  or 
the  more  recent  decision  of  Caddick  v.  Skidmore  (1857),  2  Do  G.  &  J. 
52.  This  is  a  strong  adverse  comment,  but  yet  I  am  bound  to  treat 
the  decision  as  sound,  and  I  did  so  in  Gray  v.  Smith,  43  Ch.  D.  208. 
Whether  it  is  competent  for  the  Court  of  Appeal  now  to  disturb  the 
ruling  above  quoted,  or  whether  being  competent  the  court  would  be 
willing  to  do  so,  is  not  for  me  to  say  ;  but  at  any  rate  I  must  take  the 
ruling  to  be  established.  It  by  no  means  follows  that  1  ought  to  ex- 
tend it,  and  it  is  fairly  open  to  question  whether  the  rule  obtaining  in 
contracts  of  partnershi[)  is  properly  applicable  to  a  contract  of  mar- 
riage In  one  sense,  no  douV)t,  that  is  also  a  contract  of  partnership: 
but  no  one  would,  I  think,  venture  to  rely  on  this,  the  ruling  in  the 
two  cases  referred  to  having  reference  to  commercial  partnerships  with 
which  the  court  was  there  exclusively  concerned.  Nevertheless,  the 
reasoning  of  the  Loid  Chancellor  in  Forster  r.  Hale  seems  to  me  to 
show  that- he  intended  to  lay  down  a  general  rule,  whicli  may  l)e  npplicd 
without  extension  to  the  case  in  hand.  This.  I  think,  was  tiie  view  of 
Wigram,  V.  C.,in  Dale  /•.  Ilaiiiiltoii,  and  also,  as  it  seems  to  me,   ot 


220  SAUL    V.    HIS    CKEDITORS.  [CHAP.  VIL 

Lord  Lindle}-,  who  cites  the  passage  from  the  Lord  Chancelloi-'s  judg- 
ment in  Forster  v.  Hale,  which  supports  it.  The  Lord  Chancellor  held 
that  the  question  whether  there  was  a  partnership  or  not  must  be  tried 
as  a  fact,  and  if  it  were  established  by  evidence  that  there  was  a  partner- 
ship, then  the  premises  necessar3-  for  the  purposes  of  that  partnership 
would  by  operation  of  law  be  held  for  the  purposes  of  that  partnership. 
It  is  established  here  by  evidence  that  land  acquired  b}-  either  of  the 
two  parties  to  the  contract  would  by  force  of  the  contract  be  held  by 
him  or  her  on  certain  terms  described  briefly  by  the  phrase,  "  community 
of  goods."  An}'  lands  subsequently  acquired  are  an  acquisition  brought 
within,  and  are  required  to  fulfil  the  purposes  of  the  contract,  and  ac- 
coi'ding  to  the  Lord  Chancellor's  reasoning  they  are  by  operation  of 
law  held  for  those  purposes.  There  may  be  error  in  this  way  of  stating 
the  case  and  applying  the  Lord  Chancellor's  ruling,  but  I  am  unable  to 
discover  it,  and  must,  therefore,  hold  that  the  freehold  and  leasehold 
estates  are  as  much  subject  to  the  communit}'  of  goods  as  the  movables 
which  have  been  held  subject  to  it  by  the  decision  of  the  House  of 
Lords.  ^ 


SAUL  V.   HIS   CREDITORS. 

Supreme  Court,  Louisiana.     1827. 

[Reported  5  Martin.  New  Series,  .569.] 

Porter,  J.^  The  tableau  of  distribution  filed  by  the  syndics  of  the 
insolvent  was  opposed  in  the  court  of  the  first  instance ;  and  the  oppo- 
sition being  sustained,  an  appeal  has  been  taken  to  this  court,  by  the 
syndics,  by  the  Bank  of  the  United  States,  the  Bank  of  Orleans, 
and  the  Bank  of  Louisiana. 

The  claims  admitted  by  the  judge  a  quo,  and  which  are  now  con- 
tested here,  are  :  1st.  That  of  the  children  of  the  insolvent,  who  claim 
as  privileged  creditors  for  the  amount  inherited  by  them  from  their 
deceased  mother.   .  .   . 

Fi'om  the  facts  admitted  by  the  parties,  which  admission  makes  the 
statement  on  this  appeal,  it  appears  :  That  Saul  and  his  wife  inter- 
married in  the  State  of  Virginia,  on  the  6th  of  February,  1794,  their 
domicil  being  then  in  that  State  ;  that  they  remained  there  until  the 
year  1804,  when  they  removed  to  the  now  State  of  Louisiana;  that 
they  fixed  their  residence  here,  and  continued  this  residence  up  to 
theyear  1819,  when  the  wife  died;  that  after  their  removal  from 
Virginia,  and  while  living  and  having  their  domicil  in  this  State,  a 
large  quantity'  of  property  was  acquired,  which  at  the  death  of  the 
wife  remained  in  the  possession  of  her  husband,  the  insolvent. 

1  Ace.  Scheferling  v.  Huffman,  4  Oh.  S.  241  (serntZe).  — Ed, 

2  Parts  of  the  opinion  are  omitted.  — Ed. 


SECT,  v.]  SAUL    V.   HIS   CREDITORS.  221 

The  children  claim  the  one-half  of  the  property,  as  acquests  and 
gains,  made  b}'  their  father  and  mother  in  this  State.  The  appellants 
contend,  that  as  the  marriage  took  place  in  the  State  of  Virginia,  b}" 
whose  laws  no  community  of  acquests  and  gains  was  permilted,  the 
whole  of  the  property  acquired  here  belonged  to  the  husband. 

This  statement  of  the  matter  at  issue  shows,  tiiat  the  only  question 
presented  for  our  decision  is  one  of  law  ;  but  it  is  one  which  grows  out 
of  the  conflict  of  laws  of  diflTerent  States.  Our  former  experience  had 
taught  us,  that  questions  of  this  kind  are  the  most  embarrassing  and 
difficult  of  decision  that  can  occupy  the  attention  of  those  who  pre- 
side in  courts  of  justice.  The  argument  of  this  case  has  shown  us, 
that  the  vast  mass  of  learning  which  the  research  of  counsel  has  fur- 
nished, leaves  the  subject  as  much  enveloped  in  obscurity  and  doul)t 
as  it  would  have  appeared  to  our  own  understandings  had  we  been 
called  on  to  decide  without  the  knowledge  of  what  others  had  thought 
and  written  upon  it.   .   .   . 

Recourse  must  be  had  to  the  former  laws  of  the  country. 

The  positive  regulations  of  Spain  on  this  subject  are  contained  in 
two  laws  :  one  of  the  Fuero  Real,  and  the  other  of  the  Partidas. 

That  part  of  the  law  of  the  Partidas  which  directly  applies  to  the 
case  before  the  court  is  in  the  following  words  :  "  E  dezimos,  que  el 
plej'to  que  ellos  pusieron  entre  si,  deve  valer  en  la  manera  que  se 
avinieron  ante  que  casassen,  o  quando  casaron  ;  e  non  deve  ser  em- 
bargado  por  la  costumbre  contraria  de  -  aquella  tierra  do  fuesen  a 
morar.  Esso  mismo  seria,  maguer  ellos  non  pusiessen  pleyto  entre  si ; 
ca  la  costumbre  de  aquella  tierra  do  fizieron  el  casamiento,  deve  valer, 
quanto  en  las  dotes,  e  en  las  arras,  e  en  las  ganancias  que  fizieron ; 
e  non  la  de  aquel  lugar  do  se  cambiaron."  P.  4,  tit.  11,  ley  24. 
"  And  we  sa}-,  that  the  agreement  they  had  made  before  or  at  the 
time  of  their  marriage  ought  to  have  its  effect  in  tlie  manner  they 
may  have  stipulated,  and  that  it  will  not  be  avoided  b}'  the  custom  of 
the  place  to  which  the}'  may  have  removed.  And  so  we  say  it  would 
be  if  they  had  not  entered  into  any  agreement ;  for  the  custom  of  the 
country  where  they  contracted  the  marriage  ought  to  have  its  effect 
as  it  regards  the  dowry,  the  arras,  and  the  gains  they  may  have  made, 
and  not  that  of  the  place  to  which  they  may  have  removed." 

Some  verbal  criticism  has  been  exercised  on  this  law.  It  is  con- 
tended by  one  of  the  parties,  that  it  only  intended  to  provide  for  the 
gains  made  before  the  removal  of  the  married  couple  ;  or,  at  all  events, 
that  the  words  used  leave  the  sense  doul)tfuI.  By  the  other,  that  it 
regulates  all,  whether  made  before  or  after  they  left  the  couixtry  in 
which  the  marriage  took  place.  The  expressions  used,  though  not 
free  from  all  ainbiguit\',  as  the  appelhmts  have  argued,  we  think 
ought  to  receive  the  construction  for  which  they  contend.  The  law 
was  so  understood  by  the  commentators  of  tliat  day,  and  the  pre- 
ceding parts  of  it,  compared  with  tlie  clause  in  which  the  obscurity 
is  said  to  exist,  serve  to  support  this  interi)retation.   .  .   . 


222  SAUL   V.   HIS    CREDITORS.  [CHAP.  YIL 

Nothing  can  be  more  satisfactorily  sliown  than  the  opinion  of  the 
commentators  on  the  statntes  of  Spain  in  relation  to  this  particular 
subject.  From  the  time  Gregorio  Lopez  published  his  work  on  the 
Partidas,  in  the  j-ear  1555,  down  to  Febrero,  in  the  3'ear  1781,  the 
writings  of  no  jurist  of  that  country  have  been  produced  to  us,  who 
treats  of  this  matter,  that  does  not  declare  that  the  law  of  the  Parti- 
•las,  alread}'  cited,  must  be  limited  to  property  acquired  in  the  place 
where  the  marriage  is  contracted,  and  that  it  does  not  extend  to  ac- 
quisitions made  in  another  country,  to  which  the  parties  may  have 
removed,  where  a  diSerent  rule  should  prevail.  In  the  long  list  of 
writers  who  have  been  cited  in  support  of  this  doctrine  are  to  be 
found  some  of  the  most  illustrious  of  whom  the  middle  ages  could 
boast,  — James  of  Arena,  Gulielmus  de  Cuneo,  Dynus,  Raynaldus,  Jean 
Favre,  Baldus,  Alciat,  and  Ancharanus,  Gregorio  Lopez,  on  the  4 
Partidas,  tit.  11,  law  24;  Matienzo  Commentaria,  lib.  5,  tit.  9,  nos.  73- 
and  74  ;  Febrero,  p.  2,  lib.  1,  cap.  4,  §  2,  no.  62. 

Trying  the  question,  therefore,  by  authority,  no  doubt  can  exist,  on 
which  side  it  preponderates,  in  the  country  where  the  statute  was 
passed.  Admitting,  therefore,  for  a  moment,  that  the  letter  of  the 
law  of  the  Partidas  was  violated,  by  the  construction  given  to  it  by  the 
commentators  ;  that  violation  acquiesced  in  for  centuries,  by  lawyers^ 
courts,  and  the  sovereign  authority  of  the  country,  makes  as  much 
a  part  of  the  law  of  Spain  at  this  day  as  if  the  statute  had  been 
modified  by  the  power  in  the  State,  in  whom  the  right  of  legislation  was 
vested.  In  looking  into  the  laws  of  any  country,  we  stop  at  the  thresh- 
old, if  we  look  no  further  than  their  statutes  ;  and  what  we  should 
see  there  would,  in  most  instances,  only  tend  to  mislead.  In  every 
nation  that  has  advanced  a  few  steps  beyond  the  first  organization  of 
political  society,  and  that  has  made  any  progress  in  civilization,  a 
more  extensive  and  equally  important  part  of  the  rules  which  govern 
men,  is  derived  from  what  is  called,  in  certain  countries,  common  law, 
and  here,  jurisprudence. 

This  jurisprudence,  or  common  law,  in  some  nations,  is  found  in  the 
decrees  of  their  courts ;  in  others,  it  is  furnished  by  private  in- 
dividuals, eminent  for  their  learning  and  integrit}-,  whose  superior 
wisdom  has  enabled  them  to  gain  the  proud  distinction  of  legislat- 
ing, as  it  were,  for  their  country,  and  enforcing  their  legislation  by 
the  most  noble  of  all  means  :  that  of  reason  alone.  After  a  long 
series  of  years,  it  is  sometimes  diflScult  to  say  whether  these  opinions 
and  judgments  were  originally  the  effect  of  principles  previously 
existing  in  society,  or  whether  they  were  the  cause  of  the  doctrines 
which  all  men  at  last  recognize.  But  whether  the  one  or  the  other, 
when  acquiesced  in  for  ages,  their  force  and  effect  cannot  be  distin- 
guished from  statutory  law.  No  civilized  nation  has  been  without 
such  a  system.  None,  it  is  believed,  can  do  without  it;  and  every 
attempt  to  expel  it  only  causes  it  to  retiu-n  with  increased  strength  on 
those  who  are  so  sanguine  as  to  think  it  may  be  dispensed  with.. 
Duponceau  on  Jurisdiction,  105.  .  .  . 


SECT,  v.]  SAL'L    V.    HIS   CREDITORS.  22^ 

It  is  most  clear,  then,  that  this  interpretation,  which  limits  the  law 
of  the  Partidas  to  the  gains  made  in  the  country  where  the  marriage 
was  contracted  and  excludes  from  its  operation  property  acquired 
after  a  change  of  residence,  comes  to  us  recommended  and  fortitled 
by  every  sanction  that  can  give  it  value  in  the  minds  of  those  who  sit 
in  judgment,  and  whose  duty  it  is  to  pronounce  what  the  law  is,  not 
what  it  ought  to  be. 

The  appellants,  however,  contend,  that  although  such  may  be  the 
construction  given  to  the  statute  in  Spain,  that  construction  is  nut 
binding  on  the  court,  because  this  is  a  question  of  jurisprudence  not 
peculiar  to  any  distinct  nation,  but  one  touching  the  comity  of  nations, 
and  embracing  doctrines  of  international  law,  on  which  the  opinions 
of  writers  not  living  in  Spain  are  entitled  to  equal  weight  with  those 
who  professedly  treat  of  her  laws. 

The  strength  of  the  plaintiff's  case  rests  mainly  on  this  proposition » 
and  it  is  proper  to  examine  it  with  the  attention  which  its  importance 
in  the  cause  requires. 

But  though  of  importance,  it  is  not  of  any  difficulty.  By  the  comity 
of  nations  a  rule  does  certainly  exist,  that  contracts  made  in  other 
countries  shall  be  enforced  according  to  the  principles  of  law  which 
govern  the  contract  in  the  place  where  it  is  made.  But  it  also  makes 
a  part  of  the  rule  that  these  contracts  should  not  be  enforced  to  the 
injury  of  the  State  whose  aid  is  required  to  carry  them  into  effect. 
It  is  a  corollary  flowing  from  the  principle  last  stated,  that  where  the 
positive  laws  of  any  State  prohibit  particular  contracts  from  having 
effect,  according  to  the  rules  of  the  country  where  they  are  made,  the 
former  should  control.  Because  that  prohibition  is  supposed  to  be 
founded  on  some  reason  of  utility  or  policy  advantageous  to  the 
country  that  passes  it,  which  utility  or  policy  would  be  defeated 
if  foreign  laws  were  permitted  to  have  a  superior  effect.  On  the  very 
subject-matter  now  before  us,  the  writers  who  treat  of  it,  although 
disputing  about  almost  everything  else,  agree  in  stating  that  a  real 
statute,  that  is  one  which  regulates  property  within  the  lin)its  of  the 
State  where  it  is  in  force,  controls  personal  ones,  which  follow  a  man 
wherever  he  goes;  indeed,  it  has  been  expressly,  and  with  great 
propriety,  admitted  in  argument,  that  where  the  personal  statute  of 
the  domicil  is  in  opposition  to  a  real  statute  of  situation,  the  real 
statute  will  prevail.  BouUenois  Disc.  Prelim,  p.  21 ;  ibid,  des  Demis. 
quest.  6,  1G3  ;  Bouhier  sur  la  Coutume  du  Duche  de  Bourgoync,  cap. 
23,  461  ;  Rodonl)urgh  de  Statutor.  diversit.  tit.  2,  cap.  5,  no.  6. 

If  this  be  true,  the  question  whether  the  opinions  of  foreign  jurists 
shall  control  those  of  the  country  where  the  statute  is  passed,  is  at 
once  settled.  If  the  right  of  a  nation  to  pass  the  statute,  which  will 
affect  a  contract  made  in  another  country,  be  admitted,  the  right 
cannot  be  contested  to  her  to  say  whctlier  she  has  done  so  or  not. 
She  surely  is  the  best  and  safest  expoiuider  of  her  own  laws.  And  we 
repeat   here,  what  we  said  a   few  days  since,  on   nearly  the  highest 


224  SAUL   V.    HIS    CREDITOES.  [CHAP.  VII. 

authority  to  which  we  could  refer :  "  That  no  court  on  earth,  that 
professed  to  be  governed  by  principle,  would,  we  presume,  undertake 
to  sa}-  that  the  courts  of  Great  Britain,  or  France,  or  au}-  other 
nation,  had  misunderstood  their  own  statutes,  and  therefore  erect 
itself  into  a  tribunal  b}-  which  that  misunderstanding  was  to  be  cor- 
rected."    10  Wheat.  159. 

And  if  we  did  recur  to  the  jurists  of  France  and  Holland  for  in- 
formation, what  would  we  get  in  place  of  the  well-established  rules 
in  Spain  ?  Much  to  confuse,  and  little  to  enlighten  us.  We  should 
find  great  learning  and  ingenuity'  exercised  by  some  to  sliow  that  the 
law  which  regulates  the  rights  of  property  among  married  persons  is 
a  personal  one,  which  follows  the  parties  wherever  they  go ;  b}' 
others,  that  it  is  real,  and  limited  to  the  countr}'  by  which  it  is  made. 
But  not  one  of  them  denies  the  power  in  a  nation  to  pass  a  law  such 
as  has  been  lately  enacted  by  the  State  of  Louisiana,  that  a  married 
couple  moving  into  it  from  another  State  shall  be  governed  by  her 
laws  as  to  their  future  acquisitions.  None  of  them  professes  to 
comment  on  the  laws  of  Spain,  which  her  jurists  say  have  the  same 
effect  with  our  late  statute  ;  the\'  are  not  even  mentioned  by  them. 
How  wholh"  unsatisfactory,  therefore,  an}-  general  reasoning  must  be 
on  different  customs  and  usages,  to  prove  that  the  law  of  the  Fuero 
is  a  personal,  and  not  a  real  statute,  we  need  not  sa}'.   .   .  . 

An  examination  of  the  different  treatises  on  this  subject  has  con- 
vinced us  that  the  greater  number  of  the  lawj'ers  of  those  countries  are 
of  opinion  that  in  settling  the  rights  of  husband  and  wife  on  the  dis- 
solution of  the  marriage,  to  the  property-  acquired,  the  law  of  the  place 
where  it  was  contracted,  and  not  that  where  it  was  dissolved,  must  be 
the  guide.  Such  was  the  jurisprudence  of  the  Parliament  of  Paris. 
It  was  the  opinion  of  Dumoulin,  of  BouUenois,  of  Rodenburgh,  of 
Le  Brun,  of  Froland,  of  Bouhier,  of  Stockmans,  of  Pothier,  and  it  is 
that  of  Merlin.  On  the  other  side  are  found  D'Argentre,  Cravette, 
Everard,  Vandermeulen,  the  Parliament  of  Rouen,  the  Supreme  Court 
of  Brabant,  and  that  of  Metz. 

But  it  is  evident,  the  opinions  of  the  greater  number  of  those  who 
think  that  on  the  dissolution  of  the  marriage  the  law  of  the  place 
where  it  was  contracted  should  regulate  the  rights  of  the  spouses  to 
the  propert}'  possessed  by  them  is  founded  on  an  idea  which  first 
originated  with  Dumoulin,  that  where  the  parties  marry  without  an 
express  contract,  the}-  must  be  presumed  to  contract  in  relation  to  the 
law  of  the  country  where  the  marriage  took  place,  and  that  this  tacit 
contract  follows  them  wherever  they  go. 

It  is  particularly  worthy  of  remark,  that  Dumoulin,  the  founder  of 
this  system,  was  of  opinion  that  the  statute  regulating  the  com- 
munity was  real,  and  that  it  was  to  escape  from  the  consequences  of 
this  opinion  he  supposed  a  tacit  contract,  which,  like  an  express  one, 
followed  the  parties  wherever  they  went.  Such,  at  least,  was  the 
opinion  which  BouUenois  entertained  of  Dumoulin's  sentiments  ;  and 


SECT,  v.]  SAUL    V.    HIS   CREDITORS.  225 

it  appears  supported  by  quotations  which  he  makes  from  his  works. 
Boullenois,  Traite  de  personalite  et  de  realite  des  lois.  Obs.  29,  p.  740, 
757,  758. 

Some  of  those  who  have  adopted  the  conclusions  of  Dumoulin  in 
regard  to  the  marriage  contract,  treat  the  idea  of  a  tacit  agreement 
as  one  which  exists  in  the  imagination  alone.  But  the  greater  number 
seem  to  have  embraced  it ;  and  we  are  satisfied  it  is  the  main  ground 
on  which  the  doctrine  now  rests  in  France.  So  far,  therefore,  as  great 
names  can  give  weight  to  an}'  opinion,  it  comes  to  us  in  a  most  im- 
l>osing  shape,  but  to  our  judgment  it  is  quite  unsatisfactory. 

Admitting  it  for  a  moment  to  be  true  that  when  parties  married 
there  was  a  tacit  contract  between  them,  their  rights  to  property  sub- 
sequently acquired  should  be  governed  by  the  laws  of  the  country 
where  the  marriage  took  place  ;  that  tacit  agreement  would  still  be 
controlled  by  the  positive  laws  of  any  country  into  which  they  might 
remove.  This  is  admitted  by  Dumoulin  himself,  who,  after  treating 
of  the  tacit  agreement,  and  stating  that  the  statute  is  not  legal  but 
conventional,  "  Statutarium  proprie  non  este  nee  legale,  sed  con- 
ventitium,"  adds,  such  tacit  convention  cannot  have  this  effect  in 
another  place,  where  there  exists  a  contrary  statute,  which  is  absolute 
and  prohibitive,  '-alias  si  statutum  esset  absolutum  et  prohibitorium, 
non  obstantibus  pactis  factis  in  contrarium  :  tunc  non  haberet  locum 
ultra  fines  sui  territorii."  Dumoulin  on  the  first  book  of  the  Code, 
verbo  cone,  de  stat.  et  consuet.  loc.  Froland,  Memoires  sur  les 
statuts,  chap.  4,  63. 

If  such  be  the  consequence  where  the  statute  is  prohibitive,  we  do 
not  see  why  the  same  result  should  not  follow  from  a  real  statute, 
which  regulates  things  within  the  limits  of  the  country  where  it  is 
in  force.  The  reason  for  both  is  the  same,  namely,  that  the  laws  of 
the  country  where  the  contract  is  sought  to  be  enforced  are  opposed 
to  it.  Why  the  one  should  have  effect  and  the  other  should  not, 
we  profess  to  be  unable  to  distinguish.  It  may  be  a  question  whether 
the  statute  is  real  or  not,  but  the  moment  it  is  admitted  to  be  so, 
it  regulates  all  property  acquired  within  its  authority  ;  then,  according 
to  the  principles  of  Dumoulin,  the  tacit  agreement  can  no  more 
control  it  than  it  could  the  law  which  positively  forbade  such  tacit 
agreement  from  having  effect.  So  that  even  admitting  this  tacit 
agreement,  we  are  brought  back  to  the  point  from  which  we  started  ; 
that  is,  whether  the  law  regulating  the  right  of  husband  and  wife  be 
real  or  personal? 

But  without  agreeing  with  those  who  have  treated  the  idea  of 
Dumoulin  as  one  purely  of  the  imagination,  we  think  tliat  he  gives 
to  this  tacit  consent  a  mucli  more  extended  effect  timu  it  is  entitled 
to ;  that  in  supposing  when  parties  marry,  they  intend  the  laws  of 
the  place  where  the  contract  is  made  sliould  govern  them  wherever 
they  go,  he  begs  the  question ;  and  that  the  first  thing  to  be  settled  is, 
whether  these  laws  do  govern  them  wherever  they  go. 
VOL.  iz.  — 1.5 


226  SAUL   V.    HIS   CKEDITOES.  [CHAP.  VII. 

We  are  now  treating,  let  it  be  remembered,  of  a  case  such  as  that 
before  us,  where  there  is  no  express  contract,  and  the  argument  is, 
that  the  parties  not  having  entered  into  an  express  agreement,  the 
presumption  must  be,  they  intended  tlieir  rights  to  property  should 
be  governed  by  the  laws  of  the  country  where  they  married.  This 
is  admitted.  But  then  this  presumption,  as  to  their  agreement,  can- 
not be  extended  so  as  to  give  a  greater  effect  to  those  laws  than  they 
really  had.  If  it  be  true  those  laws  had  no  effect  be3-ond  the  limits 
of  the  State  where  they  were  passed,  then  it  cannot  be  true  to  suppose 
the  pai'ties  intended  they  should  have  effect  beyond  them.  The  ex- 
tent of  the  tacit  agreement  depends  on  the  extent  of  the  law.  If  it 
had  no  force  beyond  the  jurisdiction  of  the  power  bj'  which  it  was 
enacted;  if  it  was  real,  and  not  personal,  the  tacit  -  consent  of  the 
parties  cannot  turn  it  into  a  personal  statute.  They  have  not  said 
so ;  and  they  are  presumed  to  have  contracted  in  relation  to  the  law, 
such  as  it  was,  to  have  known  its  limitations,  as  well  as  its  nature,  and 
to  have  had  the  one  as  much  in  view  as  the  other.  If  the  law  of  Vir- 
ginia should  have  been,  that  for  twenty  years,  the  acquisitions  made 
by  the  parties  belonged  to  one  of  them,  and  they  married  without  an 
express  stipulation  to  the  contrary,  the}'  would  be  presumed  to  have  con- 
tracted in  reference  to  this  limitation  of  time.  If,  on  the  contrar}^  the 
law  is  limited  as  to  place,  the  tacit  agreement  which  is  founded  on  a 
supposed  consent  that  the  law  should  govern  them,  must  be  considered 
to  have  that  limitation  in  view.  In  one  word,  the  parties  are  presumed 
to  have  agreed,  that  the  law  should  bind  them  as  far  as  that  law  ex- 
tended, but  no  further.  So  that  this  doctrine  brings  us  back  again  to 
the  inquiry,  was  the  statute  real  or  personal ?  Did  it  extend  bejond 
the  limits  of  the  countrj'  where  the  marriage  took  place,  or  did  it  not? 
Whicliever  it  may  be  found  to  be,  the  parties  must  be  supposed  to  have 
contracted.  In  the  absence  of  anything  expressed  to  the  contrary-,  we 
cannot  presume  they  intended  to  enlarge  or  restrain  the  operation  of 
the  law. 

The  most  familiar  way  of  treating  this  idea,  of  tacit  contracts,  being 
made  in  relation  to  the  laws  of  the  country  where  they  are  entered  into, 
is  to  sa}',  that  the  agreement  is  to  be  construed  the  same  way  as  ii 
those  laws  were  inserted  in  the  contract.  Now,  supposing  parties  to 
marry  in  Louisiana,  and  that  our  statute,  providing  for  the  communit}' 
of  acquests  and  gains,  is  real  and  not  personal ;  that  it  divides  the 
property,  acquired  while  in  this  State,  equally  between  the  husband  and 
wife,  but  does  not  regulate  that  which  they  gain  in  another  country  to 
which  they  remove :  the  insertion  of  this  law  in  a  contract  would  be 
nothing  more  than  a  declaration,  that  while  residing  within  this  State, 
there  should  be  a  community  of  acquests  and  gains.  An  agreement 
such  as  this  could  not  have  the  same  force  as  an  express  one,  by  which 
the  parties  declared  there  should  be  a  community  of  acquests  and  gains, 
wherever  they  went :  for  the  one  has  no  limitation  as  to  place,  and  the 
other  has.     The  maxim,  therefore,  which  was  so  much  pressed  on  us 


SECT,  v.]  SAUL    V.    HIS    CREDITORS.  227 

in  argument,  taciti  et  e.rp}'essi  eadem  vis,  is  onl}'  true  where  the  law 
to  wliich  the  tacit  agreement  I'efers  contains  the  same  provisions  as 
the  written  contract. 

It  was  evidently  on  this  distinction  the  cases  of  Murphy  r.  Murph}-, 
0  Mart.  R.  83,  and  Gales  v.  Davis'  Heirs,  4  Mart.  R.  645,  were  dif- 
ferentU"  decided  in  tiiis  court.  In  the  former,  there  was  an  express 
contract  that  there  should  be  a  community  of  acquests  and  gains  be- 
tween the  parties,  even  though  they  should  reside  in  countries  where 
different  laws  might  prevail.  In  the  latter  there  was  no  express  agree- 
ment;  and  the  parties  were  not  presumed  to  have  made  a  tacit  one, 
contrar}'  to  the  law  of  the  place  where  they  married.  The}-  were  not 
supposed  to  have  agreed  that  a  real  statute,  which  governed  them  onh' 
while  there,  was  to  follow  them  as  a  personal  one,  and  regulate  their 
property  in  another  State.  If  principles  so  plain  required  an}-  authority, 
we  would  find  it  in  the  very  author  on  whom  the  appellants  principally 
reh'.  Dumoulin,  after  stating  that  the  tacit  contract  will  be  controlled 
by  a  law  that  is  contrar}'  to  it,  in  the  country  where  the  marriage  is  dis- 
solved, adds  :  that  it  will  be  different  where  the  agreement  is  express. 
"  Nisi  expresse  de  tali  lucro  conventium  fuisset,  quia  pactio  bene  ex- 
tenditur  ubique,  sed  non  statutum  mere."  Froland,  Memoires  sur  les 
statuts,  cap.  4,  p.  63. 

Having  thus  stated  the  reasons  wh}-  this  doctrine  of  a  tacit  contract 
cannot  be  admitted  b}'  us  to  the  extent  pressed  b}-  the  counsel,  it  only 
remains  for  us  to  examine  whether  the  law  of  the  Fuero  was  a  real  or 
personal  statute.  We  consider  it  real.  It  appears  to  us  to  relate  to 
things  more  than  to  persons  ;  to  have,  in  the  language  of  D'Aguesseau, 
the  destination  of  property-  to  certain  persons,  and  its  preservation  in 
families,  in  view.  It  gives  to  the  wife  and  her  heirs  the  one-half  of 
that  which  would  otherwise  belong  to  the  husband.  BouUcnois,  who 
rejects  Dumoulin's  idea  of  a  tacit  agreement,  says  the  statute  which 
regulates  the  community  is  a  personal  one,  because  it  fixes  the  State 
and  condition  of  the  spouses  ;  and  he  goes  so  far  as  to  declare,  that  if 
his  adversaries  will  not  allow  this  doctrine  to  be  correct,  then  the  stat- 
ute is  real,  for  on  no  other  ground  can  it  be  considered  personal.  We 
think  the  State  and  condition  of  both  husband  and  wife  are  fixed  by 
the  marriage,  in  relation  to  everj'thing  but  property,  independent  of 
this  law ;  and  as  it  regulates  property  alone,  it  is  not  a  personal  stat- 
ute. Boullenois,  Traite  des  statuts,  cap.  5,  obs.  29,  p.  751  ;  cap.  2, 
obs.  5,  80. 

Upon  reason,  therefore,  but  still  more  clearly  on  authority,  we  think 
the  appellants  have  failed  to  make  out  their  case.  We  know  of  no 
(|uestion  better  settled  in  Spanisli  jurisprudence,  and  what  is  settled 
there  cannot  be  considered  as  unsettled  here.  The  jurisprudence  of 
Spain  came  to  us  with  her  laws.  We  have  no  more  power  to  reject 
the  one  than  the  other.  The  people  of  Louisiana  have  the  same  right 
to  have  their  cases  decided  b}'  that  jurisprudence  as  the  subjects  of 
Spain  have,  except  so  far  as  the  genius  of  our  government,  or  our  posi- 


228  SMITH    V.    McATEE.  [CHAP.  VII. 

tive  legislation,  has  changed  it.  How  the  question  would  be  decided 
in  that  countiy  if  an  attempt  were  made  there  on  the  authority  of 
French  and  Dutch  courts  and  lawyers,  to  make  them  abandon  a  load 
in  which  they  have  been  travelling  for  nearly  three  hundred  years,  we 
need  not  say.  The  question  is  sufficiently  answered  by  the  cmfo 
already  cited,  in  which  the  adoption  of  the  opinions  of  foreign  jurists, 
in  opposition  to  those  of  Spain,  is  reprobated  and  forbidden. 

We  conclude,  therefore,  that  a  community  of  acquests  and  gains  did 
exist  between  the  insolvent  and  the  mother  of  the  appellees  from  the 
time  of  their  removal  into  this  State  ;  and  that  the  court  below  com- 
mitted no  error  in  placing  them  on  the  bilan  as  privileged  creditors, 
for  the  amount  of  those  acquests  which  remained  in  their  father's  pos- 
session at  the  dissolution  of  the  marriage.^ 


SMITH   V.    McATEE. 
Court  of  Appeals  of  Maryland.     1867. 
[Reported  27  Maryland,  420.] 

Grain,  J.  The  attachment  in  this  case  was  issued  bv  the  appellee 
to  affect  the  proceeds  of  sale  of  the  real  estate  of  the  wife,  to  pay  the 
debt  of  the  husband.  The  facts  as  presented  in  the  record  are,  that 
Nicholas  Leister  and  wife  were  citizens  of  this  State  until  August,  1854, 
when  they  removed  to  Illinois,  where  they  resided  when  this  attach- 
ment issued.  Before  removing  from  the  State  Leister  became  indebted 
to  the  appellee,  who  has  always  resided  in  Washington  County,  Mary- 
land. The  fund  in  controvers}'  was  derived  from  the  sale  of  the  real 
estate  of  Mary  Gehr,  the  mother  of  Sarah  Leister,  the  wife  of  Nicholas. 

Mary  Gehr  died  in  1855,  leaving  real  estate  in  Washington  County, 
and  by  her  last  will  and  testament  devised  a  child's  share  of  said  estate 
to  Sarah,  the  wife  of  Nicholas.  In  January,  1856,  a  bill  was  filed  in 
the  Circuit  Court  for  Washington  Count}'  against  Leister  and  wife  and 
the  other  devisees,  for  the  sale  of  the  real  estate  for  partition.  The 
bill  was  answered  by  Leister  and  wife.  In  their  answer  Sarah,  the 
wife  of  Nicholas,  claimed  her  portion  of  the  estate  as  her  sole  and 
separate  estate,  free  from  the  debts  of  her  husband,  and  insisted  that 
the  same  should  not  be  divested  from  her  by  a  sale  thereof.  Nicholas, 
the  husband,  disclaimed  all  right,  title,  or  interest  at  law  or  in  equity 
to  any  portion  of  the  estate  of  Mary  Gehr,  by  virtue  of  his  marriage 
with  the  said  Sarah  or  otherwise.     A  decree  was  passed  in  the  cause 

1  This  case  is  generally  followed  in  this  country ,  title  in  after-acquired  personal  as 
well  as  real  estate  vests  according  to  the  law  of  the  new  domicil.  Besse  v.  Pellochonx, 
73  111.  283 ;  Long  )•.  Hess.  154  111.  482,  40  N.  E .  335;  Hymau  v.  Schleuker,  44  La.  Ann. 
108  ;  Muus  V.  Muus.  29  Minn.  115  ;  Gidney  v.  Moore,  86  N.  C.  484  ;  Castro  v.  lilies,  22 
Tex.  479  ;  Fuss  v.  Fuss,  24  Wis.  256.  —Ed. 


SECT,  v.]  SMITH    V.    McATEE.  229 

Oil  the  12th  of  August,  185G,  for  the  sale  of  the  propert}-,  and  in  the 
decree  it  was  provided  that  the  proportion  of  the  proceeds  of  the  sale 
of  the  property  allotted  to  Sarah  should  be  deemed  her  separarte 
estate,  for  her  sole  and  separate  use  and  benefit,  free  from  any  claim 
or  control  of  her  husband  or  his  creditors.  After  the  sale  of  the  prop- 
erty the  amount  of  the  proceeds  due  Sarah  was  credited  to  her  sole 
and  separate  use,  and  paid  over  to  the  appellant  as  her  attorney",  when 
it  was  attached  by  the  appellee  to  pay  the  debt  of  her  husband. 

At  the  trial  of  the  cause  two  bills  of  exception  were  taken  by  the 
appellant ;  the  first  to  the  admissibility  of  evidence,  and  the  second 
upon  the  granting  of  the  plaintiffs  and  the  rejection  of  the  defendant's 
prayers.  To  arrive  at  a  proper  solution  of  the  questions  to  be  deter- 
mined b\-  this  appeal,  we  must  ascertain  the  rights  of  Sarah,  the  wife, 
under  the  will  of  her  mother  and  the  proceedings  and  decree  of  the 
court,  and  whether  the  proceeds  of  the  estate  audited  to  her  and  re- 
ceived by  Mr.  Smith,  as  her  attorney,  were  liable  to  be  attached  in  our 
courts  for  the  payment  of  the  husband's  debt.  In  1841,  the  legisla- 
ture, recognizing  the  just  and  equitable  right  of  the  wife  to  the  enjoy- 
ment of  her  real  estate,  passed  a  law  to  protect  the  real  estate  of  the 
wife  from  the  debts  of  the  husband.  This  legislation  in  favor  of  the 
wife  against  the  creditors  of  the  husband  so  favorably  impressed  itself 
upon  the  public  mind,  that  by  the  38th  section  of  the  3d  article  of  the 
constitution  of  1851,  the  legislature  was  required  to  pass  laws  neces- 
sary to  protect  tlie  property  of  the  wife  from  the  debts  of  the  hus- 
band during  her  life,  and  for  securing  the  same  to  her  issue  after 
her  death.  The  legislature,  acknowledging  the  wisdom  of  this  pro- 
vision, in  obedience  to  the  mandate  of  the  constitution,  enacted  the 
law  of  1853,  chapter  245.  That  act  provides  that  all  the  property  of 
the  wife  acquired  or  received,  after  her  marriage,  by  purchase,  gift, 
grant,  devise,  bequest,  or  in  a  course  of  distribution,  shall  be  protected 
from  the  debts  of  the  husband,  and  not  in  any  way  be  liable  for  the 
payment  thereof.  And  to  effect  the  objects  of  the  law,  the  wife  was 
given  the  benefit  of  all  such  remedies  for  her  relief  and  security  as  then 
existed,  or  should  be  devised  in  the  courts  of  law  or  equity,  without 
the  necessity  of  the  interposition  of  a  trustee.  The  object  contem- 
plated by  this  law  is  too  clear  for  doubt;  by  its  enactment  the  legis- 
lature intended  to  give  full  protection  and  security  to  the  property  of 
the  wife  against  the  creditors  of  the  husband,  as  previous  to  its  enact- 
ment the  cases  of  Peacock  r.  Pembroke  and  Clarke,  4  Md.  Hep.  280. 
and  Turton's  Hx'rs  v.  Turton,  6  Md.  Rep.,  375,  luid  been  decided  l)y 
this  court,  and  in  each  case  the  [jroperty  was  adjudged  to  be  the  hus- 
band's and  subject  to  the  payment  of  his  debts.  This  act,  soon  after 
its  passage,  received  a  judicial  intcrijiotation  in  the  case  of  Unger  and 
Wife  V.  Price,  9  Md.  \iv\).,  552.  In  that  case,  Mrs.  Unger  had  sol.l 
her  potential  right  of  dower,  and  invested  the  money  in  personal  prop- 
erty, and  it  was  held  by  this  court  to  be  exempted  from  tlic  (U-bts  of 
the  husband.     The  case  of  Mrs.  Leister  is  e(tually  strong,  and  comes 


230  SMITH    V.    MCA.TEE.  [CHAP.  VII, 

within  the  principle  settled  in  Unger  and  Wife  r.  Price.  She  was  the 
devisee  of  real  estate,  and  with  the  consent  of  her  husband  the  pro- 
ceeds of  sale  of  the  property  under  the  decree  of  a  court  of  equity  were 
lieid  to  her  sole  and  separate  use,  so  audited  to  her  and  paid  over  to 
the  appellant.  But  the  appellee  insists,  that  the  proceedings  and  decree 
were  not  admissible  evidence  against  him,  because  they  were  res  inter 
alios  acta.  We  admit,  as  a  general  rule,  tliat  judgments  and  decrees 
are  evidence  binding  only  between  parties  and  privies.  But  there  are 
man}'  exceptions  to  this  rule,  and  we  are  of  opinion  that  this  case 
forms  one  of  the  exceptions  and  comes  within  the  principle  settled  by 
this  court  in  the  case  of  Key  v.  Dent,  14  Md.  Rep.  9G.  The  record 
was  introduced  in  this  case  to  show  how  the  fund  was  derived,  and 
that  the  conversion  from  realty  into  personalty  was  not  to  prejudice 
the  rights  of  the  wife.  For  that  purpose,  according  to  the  decision 
in  Key  v.  Dent  and  the  authorities  relied  on  by  Justice  Eccleston,  who 
delivered  the  opinion  of  the  court,  the  record  was  evidence.  Head's 
Rep's.  V.  McDonald,  7  Mon.  207;  4  Phillips  on  Evidence,  920,  921, 
977  (ed.  of  1843).  The  record  was  confirmatory  of  the  answers  of  the 
garnishee  and  proof  that  the  decree  was  had  as  tliere  set  forth.  It 
was  a  decree  of  a  court  of  competent  jurisdiction,  which  in  the  exercise 
of  its  powers  as  a  court  of  chancery  settled  the  property  to  tlie  sole  and 
separate  use  of  Mrs.  Leister.  And  although  we  find  this  right  of  the 
wife  to  her  property,  protected  in  this  State  by  public  policy,  by  stat- 
ute, and  by  a  decree  of  a  court  of  equity,  yet  it  was  earnestly  con- 
tended by  the  learned  counsel  for  the  appellee,  that  a  creditor  of  the 
husband  had  a  right  to  attach  this  fund  in  our  courts  of  justice  for  the 
debt  of  the  husband,  as  by  the  laws  of  Illinois,  where  the  husband  and 
wife  resided,  the  husband  was  entitled  to  all  tlie  personal  property  of 
the  wife,  and  that  by  virtue  of  this  law  of  the  domicil  the  fund  was 
vested  in  the  husband.  And  he  claimed  this  right  to  divest  the  wife  of 
her  property  by  the  law  of  the  domicil,  on  the  ground  of  comity.  In 
this  case  we  cannot  sanction  such  a  right,  for  it  has  been  decided  that 
comity  is  overruled  by  positive  law,  and  that  it  is  only  in  the  silence  of 
any  particular  rule,  aflSrming,  denying,  or  restraining  the  operation  of 
foreign  laws,  that  courts  of  justice  presume  a  tacit  adoption  of  them 
by  their  own  government.  Gardner  v.  Lewis,  7  Gill,  395.  It  is  cer- 
tainly competent  for  any  State  to  adopt  laws  to  protect  its  own  prop- 
erty as  well  as  to  regulate  it,  and  "■  no  State  will  suffer  tlie  laws  of 
another  to  interfere  with  her  own,  and  in  the  conflict  of  laws,  when  it 
must  often  be  a  matter  of  doubt  whicli  shall  prevail,  the  court  wliich 
decides  will  prefer 'the  laws  of  its  own  country  to  that  of  the  stranger." 
Story's  Conflict  of  Laws,  §  28.  The  courts  of  our  State  have  perfect 
jurisdiction  over  all  personal  property  as  well  as  real  within  its  limits, 
belonging  to  the  wife,  and  they  have  a  right  to  protect  both  from  the 
debts  of  the  husband.  If  therefore  our  legislative  enactment  in  regard 
to  the  property  of  the  wife  and  the  laws  of  Illinois  conflict,  it  cannot 
be   made  a  question  in  our  own  courts  which  shall  prevail.      "  Where 


SECT,  v.]  HARRAL    V.    HARRAL.  231 

there  is  no  constitutional  barrier,  we  are  bound  to  observe  and  enforce 
the  statutory  provisions  of  our  own  State."  Davis  r.  Jacquin,  5  Har. 
&  J.  109  ;  Gardner  v.  Lewis,  7  Gill,  395. 

As  this  fund  by  our  laws  is  held  by  the  appellant  for  the  sole  and 
separate  use  of  Mrs.  Leister,  a  creditor  of  the  husband  seeking  a  rem- 
edy against  him  in  our  courts  must  be  goverued  and  regulated  by  our 
laws;  for  Justice  Story  says:  "A  person  suing  in  this  country  must 
take  the  law  as  he  finds  it,  and  wherever  a  remedy  is  sought,  it  must  be 
administered  according  to  the  lex  fori;  and  such  a  judgment  is  to  be 
given  as  the  law  of  the  State  where  the  suit  is  brouglit  authorizes." 
Story's  Conflict  of  Laws,  §§  571,  572.  And  in  this  court,  in  the  case 
of  Wilson  &  Co.  V.  Carson  &  Co.,  12  Md.  Rep.  75,  Le  Grand,  Chief 
Justice,  says  :  '•  The  recognition  of  the  laws  of  another  State,  in  the 
administration  of  justice  in  this,  is  not  a  right  stricH  Juris;  it  depends 
entirely  on  comity,  and  in  extending  it,  courts  are  always  careful  to 
see  that  the  statutes  of  their  own  State  are  not  infringed  to  the  injury 
of  their  own  citizens." 

We  think  these  authorities  decisive  of  the  question,  and  that  the 
appellant  has  a  right  to  rely  in  a  court  of  law  upon  the  title  of  Mrs. 
Leister  to  the  fund  in  controversy.  Her  right  had  not  been  divested 
by  her  own  act  or  by  operation  of  law,  and  the  fund  in  his  hands  was 
not  liable  to  be  attached  by  the  creditor  of  the  husband. 

The  views  which  we  have  expressed  of  the  legal  propositions  govern- 
ing this  case  are  conclusive  upon  the  right  of  the  plaintiff  to  recover, 
and  it  is  unnecessary  to  examine  the  first  bill  of  exceptions,  to  ascer- 
tain whether  the  evidence  offered  by  the  defendant  of  the  laws  of  Illi- 
nois touching  the  rights  of  husband  and  wife  were  admissible  or  not. 
It  follows  from  what  we  have  said,  that  the  instructions  given  by  the 
court  at  the  instance  of  the  iilaintiff  and  contained  in  the  second  bill 
of  exceptions  were  erroneous.  The  prayers  asked  by  the  defendant's 
counsel  embrace  in  our  opinion  the  true  theory  of  the  law  of  the  case 
and  ought  to  have  been  granted.  For  these  reasons  we  reverse  the 
judgment  of  the  Circuit  Court. 

Judgment  reversed,  loithout  procedendo} 


HARRAL  V.  HARRAL. 

Court  of  Errors  AxNd  Appkals,  Nkw  Jf.rsey.     1884. 

[Reported  39  New  Jersey  Equity,  279.] 

Frederick  F.  IIarral  was  born  in  Connecticut  in  1842.  He  gradu- 
ated at  Yale  College  in   IHG.'},  and  at  tlie  College  of  Physicians  and 

1  Arc.  Loftus  V.  Bank,  in:!  P:i.  97.  As  soon  as  tlii«  [.iccils  of  a  marrio.l  woman's 
separate  real  estate  are  transmitted  to  the  niatrinionial  doiiiicil,  tliey  are  held  accord- 
ing to  the  law  of  the  latter  place.     Castleinan  v.  Jeffries,  60  Ala.  380.  —  Ei>. 


232  HARRAL    V.    HARRAL.  [CHAP.  VII. 

Surgeons  in  New  York  Cit}-,  in  1868.  lie  was  married  on  the  20th  of 
February,  1877,  before  the  deputj-  mayor,  in  the  city  of  Paris,  to 
Clarice  Marie  Le  Gars,  a  Frenchwoman.  In  May,  1878,  he  returned 
to  this  country',  and  died  at  Kirkbride's  hospital  for  the  insane,  in 
Philadelphia,  July  5,   1881. 

On  the  9th  of  July,  1869,  and  before  his  departure  for  Europe,  the 
decedent  duly  made  and  executed  a  will,  devising  and  bequeathing  all 
his  property,  real  and  personal,  to  his  brother  and  sisters,  and  appoint- 
ing William  Creighton  Peet  and  Hamilton  Wallis  executors.  This  will 
was  admitted  to  probate  in  the  prerogative  court  of  this  State  on  the 
31st  of  July,  1882. 

The  widow  filed  this  bill  in  the  Court  of  Chancer}-  of  this  State,  to 
which  the  legatees  under  the  will  of  her  husband  and  the  executors  are 
parties. 

The  prayer  of  the  bill  is  that  the  personal  estate  of  the  decedent,  so 
far  as  concerns  the  complainant's  interest  therein,  should  be  distributed 
in  accordance  with  the  laws  of  France. 

On  final  hearing,  on  bill  answer  and  depositions,  the  chancellor 
made  a  decree  in  accordance  with  the  prayer  of  the  bill.  From  that 
decree  the  defendants  appealed. 

Depue,  J.  The  law  of  France  in  relation  to  the  rights  of  husband 
and  wife  in  the  property  of  either  spouse  is  established  by  the  Code 
Napoleon.  Before  the  French  Revolution,  the  northern  provinces  of 
France  were  under  the  customary  law,  and  the  community  of  property 
governed  the  nuptial  contract ;  in  the  southern  provinces  the  Roman 
law  prevailed,  and  the  contract  was  governed  by  the  dotal  system 
The  Code  Napoleon  left  the  parties  to  elect  the  law  by  which  the  mar- 
riage should  be  governed  ;  and  if  no  election  was  made,  the  commun- 
ity system  was  to  prevail.  2  Kent,  187,  note.  Section  1391  of  the 
Code  provides  that  the  parties  may  declare  in  a  general  manner  that 
they  intend  to  marry  either  under  the  law  of  community  or  under  the 
law  of  dowry.  The  community  is  either  legal  or  conventional.  Legal 
community  is  established  either  by  a  simple  declaration  that  the  parties 
marry  under  the  law  of  community,  or  by  a  marriage  without  any  con- 
tract on  the  subject.  Sections  1400,  1497.  There  was  no  marriage 
contract  between  these  parties  with  respect  to  property  ;  and  if  dis- 
position of  the  personal  estate  in  question  is  to  be  made  by  the  French 
law,  it  must  be  disposed  of  as  community  property. 

Community  is  divided  by  the  Code  into  two  classes  —  active  and 
passive.  The  former  relates  to  the  disposition  of  property  ;  the  latter, 
to  liability  for  debts.  The  property  which  is  comprised  in  the  com- 
munity consists  of  (1)  All  the  movable  property  which  the  married 
parties  possessed  on  the  day  of  the  celebration  of  the  marriage,  and  all 
movable  property  which  falls  to  them  during  the  marriage,  by  succes- 
sion, or  even  by  donation,  if  the  donor  has  not  expressed  himself  to 
the  contrary ;  (2)  All  the  fruits,  revenues,  interest,  and  arrears  of  what 
nature  soever  they  may  be,  fallen  due  or  received  during  the  marriage, 


SECT,  v.]  HARRAL   V.    HARRAL.  233 

and  arising  from  property  wliich  belonged  to  the  married  persons  at 
the  time  of  the  celebration  of  the  marriage,  or  from  such  as  has  fallen 
to  them  during  the  marriage  by  any  title  whatsoever  ;  and  (3j  All  im- 
movable propertv  acquired  during  the  marriage.  Section  l-iOl.  This 
community,  whether  it  be  conventional  or  legal,  commences  from  the 
day  of  the  marriage  contracted  before  the  ollicer  of  the  civil  power. 
Section  1399.  During  the  coverture  the  husband  has  the  custody, 
control,  management,  and  power  of  disposition  (under  some  restric- 
tions) of  the  community  property  (sections  1421,  1422)  ;  and  he  may 
make  a  testamentary  disposition  of  his  portion  of  the  community  prop- 
erty, but  of  no  more.  Section  1423.  After  the  death  of  the  husband 
the  wife  may  accept  or  renounce  the  communit}*.  Section  1453.  If 
she  accept  it,  her  share  —  that  is,  the  one-half  part  of  the  community 
l^roperty  —  is  given  to  her,  subject,  in  the  partition,  to  certain  specified 
deductions  and  allowances  by  way  of  compensation.  Sections  1467, 
1480. 

The  complainant,  in  her  bill,  charges  that  the  legal  domicil  of  the 
decedent,  at  the  time  of  his  death,  was  in  France,  and  insists  that 
from  the  time  of  the  celebration  of  her  marriage  with  the  testator,  by 
force  and  operation  of  the  laws  of  France,  a  legal  community  was 
established  between  her  and  her  husband  as  to  all  the  personal  or  mov- 
able property  possessed  or  owned  by  either  of  them  during  the  mar- 
riage, and  in  all  the  fruits,  revenues,  interest,  and  income  thereof;  and 
that  upon  the  death  of  the  testator  she  was  entitled  to  have  and  receive, 
absolutely,  for  her  own  use  and  benefit,  the  one-half  part  of  all  such 
property  so  held  in  community  between  herself  and  her  husband,  and 
that  it  was  not  in  the  power  of  her  husband  to  dispose  of  that  share 
or  interest  in  said  property',  which,  b}-  the  laws  of  France,  belonged 
to  her. 

The  defendants,  in  their  answer,  admit  that  the  testator  was  married 
to  the  complainant  on  the  20th  of  February,  1877,  at  Paris  ;  but  they 
say  that  the  marriage  was  void  for  the  reason  that  the  testator  at  that 
time  was  of  non-sane  mind,  and  incompetent  to  enter  into  a  contract  of 
marriage.  They  admit  that  the  testator  lived  in  Paris  for  five  years 
l)efore  his  marriage,  but  deny  tliat  his  legal  domicil  was,  at  the  time  of 
liis  marriage,  or  at  an}-  time,  in  France,  and  insist  that  distribution  of 
his  personal  estate  should  be  made  under  the  laws  of  New  Jersey. 
They  also  say  that  by  the  law  of  France  no  man  can  become  domiciled 
in  France  without  he  siiall  have  first  applied  to  the  Freneli  government 
for  permission  to  do  so,  and  obtained  an  express  autliorization  from 
the  government  to  establish  such  domicil,  and  that  the  testator  never 
obtained  an  authorization  to  establish  his  domicil  in  France,  and  never 
became  domiciled  there  by  the  laws  of  that  country. 

Tlie  chancellor,  in  his  opinion,  con.sid(!red  tlie  evidence  on  tiic  sub- 
ject of  the  testator's  mental  condition  at  tiie  time  of  his  marriage,  and 
reached  the  conclusion  that  the  testator  was  not  at  that  time  mentally 
incapacitated  to  contract  marriage  or  to  change  or  establish  his  domi 


234  HARRAL    V.    HARRAL.  [CHAP.  VII. 

cil.  The  evidence  shows  that  the  decedent,  for  some  time,  had  been 
addicted  to  intemperance,  and  that  his  phj-sical  and  mental  vigor 
had  been  impaired  b\'  indulgence  in  drink ;  but  it  falls  short  of  proof 
that,  at  the  time  of  his  marriage,  his  mental  faculties  had  become  so 
impaired  as  to  incapacitate  him  from  entering  into  a  contract  of  mar- 
riage, or  from  deciding  upon  the  place  of  his  domicil.  The  answer 
contains  no  allegation  of  fraud  or  imposition  upon  the  decedent  in 
procuring  the  marriage.  The  case  turns  whollj-  upon  the  applicability 
of  the  community  law  to  the  testator's  personal  estate  in  the  hands  of 
his  executors. 

When  the  testator  went  abroad  in  1869,  his  property  consisted  of 
personal  estate,  and  a  house  and  lot  in  Bridgeport,  Connecticut.  The 
personal  estate  he  left  in  charge  of  Mr.  Wallis,  to  be  invested  and 
cared  for,  and  it  remained  in  charge  of  the  latter  during  the  lifetime  of 
the  decedent.  This  personal  estate,  amounting  to  about  $50,000,  at 
the  testator's  death  came  to  the  hands  of  the  executors.  This  coutro- 
vers}'  relates  wholly  to  the  personal  estate.^  .  .   . 

The  complainant's  counsel  contended  that  inasmuch  as  the  marriage 
was  celebrated  in  France,  the  wife,  immediately  on  her  consummation 
of  the  marriage,  acquired  a  vested  right  in  her  husband's  property, 
independent  of  an}'  question  of  domicil,  and  that  her  right  in  the  per- 
sonal pro[)ert3-  of  the  husband  was  a  jus  acquired  by  the  marriage  by 
virtue  of  the  French  law,  which  could  not  be  invalidated  by  any  ex- 
traneous circumstances.  This  view  luis  had  some  support  in  the  opin- 
ions of  writers  on  international  law,  but  is  contrary  to  the  course  of  de- 
cision in  the  courts  of  this  countr}',  and,  I  may  add,  to  the  later  decisions 
of  the  courts  elsewhere.  The  doctrine  generally  adopted  and  supported 
b}'  reason  and  public  policy  is,  that  a  marriage  celebrated  according  to 
rites  and  ceremonies  recognized  b}-  the  laws  of  the  country  where  the 
marriage  takes  place,  is  valid  everywhere ;  and,  as  a  general  rule  (not 
without  exceptions),  b}'  that  law  the  capacit}'  of  the  parties  to  contract 
a  marriage  is  determined.  Whart.  on  Confl.  of  Laws,  §§  161,»162, 
164;  Story  on  Confl.  of  Laws,  §§  113,  113  a,  114,  123  b,  124,  124  a  ; 
Bish.  on  Marr.  and  Div.  §§  357,  359,  363,370;  Moore  c.  Hegeman,  92 
N.  Y.  521.  But  with  respect  to  the  propert}'  rights  of  husband  or  wife 
in  the  personal  propert}'  of  either,  derived  from  the  marriage  relation, 
the  place  where  the  marriage  was  celebrated  is  not  decisive  ;  these 
rights  depend  on  what  is  known  in  law  as  the  matrimonial  domicil.  Le 
Breton  v.  Nouchet,  3  Mart.  (La.)  60,  81  ;  Ford  ik  Ford,  2  Mart.  (n.  s.) 
574  ;  Allen  v.  Allen,  6  Rob.  (La.)  104 ;  Kneeland  v.  Ensley,  Meigs 
(Tenn.)  620;  Glenn  /'.  Glenn,  47  Ala.  204;  Mason  v.  Homer,  105 
Mass.  116  ;  Story  on  Confl.  of  Laws,  §§  186,  193  ;  2  Pars,  on  Cont.  590. 
Mr.  Wharton  sa3's  that  the  place  of  the  celebration  is  not  necessarih- 
the  place  of  the  performance  of  the  marriage,  which,  he  says,  the  later 
jurists  have  agreed  is  its  true  legal  site,  and  that  this  place  of  perform- 
ance is  the  matrimonial  domicil  to  which  the  husband  and  wife  propose 

^  Here  follows  a  discussion  ou  domicil,  for  which  see  ctnte,  Vol.  I.  p.  195.  — Ed. 


Stt-T.  v.]  HARRAL    V.   IIARKAL.  235 

to  repair.  Whart.  on  Confl.  of  Laws,  §  192.  On  tlie  marriage,  the 
legal  presumption  is  that  the  wife  takes  the  domicil  of  her  husband, 
and  her  rights  are  subject  to  the  law  of  his  domicil ;  but  that  i)resump- 
lion  is  overcome,  and  the  legal  inference  is  superseded  when,  on  the 
marriage,  the  parties  adopt  a  place  for  their  matrimonial  domicil  — in 
which  event  the  matrimonial  domicil  will  control,  and  will  regulate  the 
jn-opert}-  rights  of  the  parties  in  movables. 

The  authorities  are  quite  generallv  in  accord  in  selecting  the  matrimo- 
nial domicil  as  the  place  which  shall  furnish  the  law  regulating  the  in- 
terests of  husband  and  wife  in  the  movable  property  of  either,  which  was 
in  esse  when  the  marriage  took  place.  Perplexing  questions  sometimes 
arise  as  to  what  place  shall  be  deemed  the  true  matrimonial  domicil  in 
the  sense  of  this  rule.  Mr.  Justice  Story  supposes  a  case  where  neither 
of  the  parties  has  a  domicil  in  the  place  where  the  marriage  was  cele- 
brated, and  the  parties  were  there  in  transitu,  or  during  a  temporary 
residence,  or  on  a  journey  made  for  that  sole  purpose  cmiiuo  rever- 
tendi,  and  says  that  the  principle  maintained  by  foreign  jurists  in  such 
cases  would  be  that  the  actual  or  intended  domicil  of  the  parties  would 
be  deemed  to  be  the  true  matrimonial  domicil ;  or,  to  express  the  doc- 
trine in  a  more  general  form,  that  the  law  of  the  place  where,  at  the 
time  of  the  marriage,  the  parties  intended  to  fix  their  domicil  would 
govern  all  the  rights  resulting  from  the  marriage.  He  also  supposes 
the  case  of  a  man  domiciled  in  one  State  marrying  a  lady  domiciled  in 
another  State,  and  says  that  foreign  jurists  would  hold  that  the  matri- 
monial domicil  would  be  the  domicil  of  the  husband  if  it  was  the  inten- 
tion of  the  parties  to  fix  their  residence  there,  or  the  domicil  of  the 
wife  if  it  was  their  intention  to  fix  their  residence  there,  or  in  a  differ- 
ent place  from  the  domicil  of  either  the  husband  or  wife  if  they  intended 
to  establish  their  matrimonial  domicil  in  some  other  place.  He  then 
refers  to  the  decisions  of  the  courts  of  Louisiana,  adopting  the  same 
principle,  and  concludes  that,  '•  under  these  circumstances,  where  there 
is  such  a  general  consent  of  foreign  jurists  to  the  doctrine  thus  recog- 
nized in  America,  it  is  not,  perhaps,  too  much  to  affirm  that  a  contrary 
doctrine  will  scarcely  hereafter  l)e  established  ;  for,  in  England  as  well 
as  in  America,  in  the  interpretation  of  other  contracts,  the  laws  of  the 
place  where  tliey  are  to  be  performed  has  been  held  to  govern.  Treated, 
therefore,  as  a  matter  of  tacit  matrimonial  contract  (if  it  can  be  so 
treated),  there  is  the  rule  of  analogy  to  govern  it ;  and  treated  as  a 
matter  to  be  governed  by  the  municipal  law  to  which  the  partii's  were, 
or  meant  to  be,  subjected  l)y  their  future  domicil,  the  doctrine  seems 
equally  capable  of  a  solid  vindication."  Story's  Confi.  of  Laws,  !i§  1<)1- 
199.  All  perplexity  on  this  sul)jectis  removed  where,  as  in  this  case, 
the  place  wliere  the  marriage  is  celel)rated,  the  domicil  of  the  wife,  and 
the  establishment  of  a  home  after  the  marriage,  concur.  The  place  of 
contract  and  the  place  of  performance!  licing  tlu;  same,  on  legal  anal- 
ogies there  would  seem  to  be  no  (l()iil)t  that  that  [)lace  would  l»c  the 
matrimonial  domicil,  and  that  tlic  incidents  of  the  marriage  would  be 
determined  bv  the  law  oC  that  jdace. 


236  HAEEAL   V.   HAEEAL.  [CHAP.  VIL 

Nor  can  that  question,  which  has  given  rise  to  great  diversitj-  of 
opinion  where  new  propert}-  has  been  acquired  after  the  marriage,  and 
in  a  new  domicil,  arise  in  this  case,  for  the  property  to  which  this  con- 
troversy relates  was  in  esse  at  the  time  of  the  marriage,  and  the  matri- 
monial domicil  then  established  continued  until  the  husband's  death  ; 
and  it  is  universally  allowed  that,  when  a  marriage  takes  place  without 
settlement,  the  mutual  rights  of  the  husband  and  wife  in  each  other's 
movable  property  are  to  be  regulated  by  the  law  of  the  matrimonial 
domicil,  so  long  as  that  remains  unchanged.  Westlake's  Int.  Law, 
§  366. 

The  French  law  recognizes  a  conjugal  domicil  analogous  to  what  is 
known  in  our  law  as  a  matrimonial  domicil  and  is  distinguished  from 
that  domicil  which  is  required  for  the  purpose  of  contracting  a  lawful 
marriage  ;  and  the  law  of  that  country,  with  respect  to  the  effect  of  the 
conjugal  domicil  upon  the  rights  of  husband  and  wife  in  the  movable 
property  of  either  spouse,  is  in  accordance  with  the  views  above  ex- 
pressed. George  Merrell,  a  witness  called  by  the  defendants,  who  is 
liot  an  attorney  or  acocat  in  the  French  courts,  l)eing  a  foreigner  who 
studied  law  in  New  York  City,  said  that  a  foreigner  cannot  acquire  u 
domicil  in  France  without  complying  with  Article  13  of  the  Code, 
except  it  be  a  matrimonial  domicil,  which  he  defines  to  be  the  resi- 
dence necessar}'  to  confer  jurisdiction  on  the  magistrate  for  the  celebra- 
tion of  the  marriage  ;  and  that  in  the  case  of  an  American  citizen 
establishing  his  residence  in  France,  with  intention  of  making  that  his 
permanent  home,  marrying  and  living  there,  not  having  received  the 
government  authorization,  according  to  tlie  Code,  his  personal  prop- 
erty would  be  distributed  according  to  the  American  law.  On  the 
other  hand,  M.  Goiraud,  a  French  lawyer  called  by  the  complainant, 
testified  that  the  domicil  necessary  for  a  foreigner  to  contract  a  legal 
marriage  required  onh'  a  residence,  in  fact,  for  six  months,  and  that 
the  domicil  which  was  to  govern  the  marriage  relations  of  the  parties 
would  be  the  conjugal  domicil,  which  he  defined  to  be  the  domicil 
which  had  been  chosen  b}'  tlie  parties,  either  at  the  time  of  the  mar- 
riage or  after  the  marriage,  in  order  to  be  finall}'  settled.  M.  Clunet, 
arocat  of  the  court  of  Paris,  called  by  the  complainant,  testified  that 
French  jurisprudence,  in  order  to  establish  tiie  marriage  relation  of  the 
parties  married  without  a  contract,  takes,  as  a  principle,  their  supposed 
intention,  and  finds  the  expression  of  that  intention  in  what  is  called 
the  conjugal  domicil,  or,  in  other  words,  the  place  where,  after  the 
marriage,  the  parties  establish  themselves.  Both  these  witnesses  agree 
that  government  authorization  is  not  required  for  the  establishment  of 
a  conjugal  domicil  in  France,  which,  when  the  marriage  is  celebrated 
in  France  without  a  contract,  will  make  the  propert}'  of  a  foreign-born 
husband  subject  to  the  community  law. 

The  decisions  of  the  French  courts  sustain  the  opinions  given  by 
M.  Goiraud  and  M.  Clunet.  In  Breul's  Case,  Sirey  (1854),  2,105, 
translated  in  4  Phillim.  Int.  Law,  226,  and  more  fully  in  Cole  on  Domi« 


SECT,  v.]  HAKRAL    V.    HARRAL.  237 

cil,  45,  47,  Breul  was  a  Hanoverian  ;  he  married  a  Frenchwoman  in 
France,  and  died  there  ;  at  the  time  of  his  marriage,  and  at  his  death, 
he  was  domiciled  in  France,  but  had  not  obtained  a  governmental 
authorization  for  that  purpose.  On  appeal,  the  question  was  whether 
there  was  a  community  of  goods  between  husband  and  wife.  The 
court  held  that  tliere  was,  and  that  foreigners  were  capable  of  entering 
into  all  contracts  depending  on  the  law  of  nations,  and  could,  when 
they  marry  in  France,  accept  tacitly  the  rule  of  community,  established 
by  law,  in  the  same  way  as  they  might  have  made  that  rule  the  subject 
of  express  stipulation  in  a  formal  contract ;  that,  to  make  this  princi- 
ple apply  to  foreigners,  it  was  not  enough  that  the  marriage  was  cele- 
brated in  France  ;  but  that  it  was  also  necessary  that  the  intention  of 
the  contracting  parties  to  adopt  the  community  should  be  manifested 
by  affirmative  acts ;  that  the  establishment  of  a  domicil  in  France  had 
always  been  regarded  as  the  most  positive  manifestation  of  such  inten- 
tion ;  that  the  domicil  ought  to  have  an  importance  to  distinguish  it 
from  simple  residence,  but  it  was  not  necessary  that  it  should  have 
been  authorized  by  the  government  under  Article  13,  for  the  reason 
that  the  object  of  this  authorization  was  to  confer  on  the  foreigner  all 
the  civil  rights  of  native-born  Frenchmen,  and  that  these  rights  were 
not  necessary  in  a  foreigner  in  order  to  enable  him  to  enter  into  matri- 
monial conventions,  which  are  purely  of  the  Jus  gentium. 

In  Lloyd  v.  Lloyd,  Sirey  (1849),  2,  220 ;  in  Cole  on  Domicil,  37,  and 
translated  in  a  note  to  Whicker  v.  Hume,  13  Beav.  401,  James  Lloyd, 
a  foreigner,  whose  birthplace  was  unknown,  and  who  was,  by  presump- 
tion and  residence,  an  Englishman,  came  to  France,  and  established 
himself  there  permanently.  In  1836  he  married,  at  Paris,  a  French- 
woman, without  a  marriage  settlement.  He  had  three  children  by  the 
wife  before  marriage,  and  three  afterwards.  He  continued  his  resi- 
dence, and  died  in  Paris,  leaving  his  wife  and  the  six  children  surviv- 
ing him.  The  widow  claimed,  before  the  French  court,  that  portion  of 
the  property  which  would  belong  to  her  by  the  French  law,  if  she  and 
her  husband  were  married  under  the  regime  of  the  coynmunaiUe  des 
biens.  Her  right  depended  on  whether,  at  the  time  of  the  marriage, 
the  decedent  had  a  legal  domicil  in  France.  He  never  had  applied  for 
or  obtained  an  authorization  under  Article  13  of  the  Code.  The  Tribu- 
nal of  the  Seine  decided  against  her  claim,  but  the  decree  was  reversed 
by  the  Court  of  Appeal,  and  the  claim  of  the  widow  sustained.  The 
court  said  that  "  it  is  fruitless  to  contend  that  the  domicil  of  James 
Lloyd,  in  France,  was  not  accompanied  by  the  authorization  of  the 
government,  required  by  Article  13,  and  tlierefore  it  cannot  be  taken 
into  consideration  as  regulating  the  conjugal  domicil,  for  it  is  a  fixed 
principle  of  law,  as  well  before  as  since  the  Code,  that  a  foreigner, 
even  when  he  preserves  tliat  qualit}-,  could  acquire  a  domicil  in 
France;  that  Article  13  of  the  Code  did  not  intend  to  change  this 
state  of  things  ;  that  it  is  only  when  a  foreigner  wishes  to  possess  such 
a  domicil  in  France,  as  will  confer  upon   liim  all  civil  rights,  that  the 


238  HARRAL    V.    HARRAL.  [CHAP,  VII. 

authorization  of  government  is  required  ;  that  in  the  present  case  it  is 
not  a  question  as  to  a  civil  right,  exclusively  appertaining  to  a  French 
citizen  ;  that  the  tacit  agreement  as  to  the  community  of  goods,  result- 
ing from  submission  to  Articles  1393,  1399,  1340,  and  the  succeeding 
articles,  was  purely  derived  from  the  law  of  nations." 

In  Fraix's  Case,  Fraix  was  a  Savoyard,  and  settled  in  Paris,  where 
he  married  his  second  wife,  a  Frenchwoman.  The  question  was 
whether  he  married  under  the  French  communaute  des  Mens.  The 
court  held  that  although  he  had  not  been  authorized  by  tiie  government 
to  establish  his  domicil  in  France,  a  domicil  was  not  necessary  to 
make  the  communaute  applicable,  which  is  presumed  to  have  been  the 
intention  of  the  parties  when  they  fixed  themselves  in  France.  4  Fhil- 
lim.  Int.  Law,  231. 

In  Ghisla's  Case,  decided  in  1878,  Ghisla  was  a  Swiss  by  birth.  He 
married  a  Frenchwoman  in  France,  and  before  and  after  his  marriage 
had  his  domicil  in  Marseilles,  and  in  that  place  died.  His  widow 
claimed  the  benefit  of  the  community  law,  and  it  was  adjudged  to  her 
by  the  court  of  Aix,  the  ground  of  the  decision  being  that,  where  one 
of  the  married  couple  is  French,  and  the  other  a  foreigner,  they  are,  in 
the  absence  of  a  contract,  governed  by  the  law  of  the  conjugal  domicil ; 
that  the  intention  of  the  parties  is  to  be  considered  before  their  nation- 
ality, and  that  to  the  fixing  of  the  conjugal  domicil,  government  author- 
ization was  not  required,  for  whatever  appertains  to  the  marriage 
belongs  rather  to  the  jus  gentium  than  to  the  civil  law,  properly  speak- 
ing. °Jour.  Int.  Law,  1878,  610.  In  Dages  r.  Laborde,  it  was  held 
that  the  legislation  applicable  to  the  civil  interests  of  a  marriage  was 
that  of  the  place  where  the  married  couple  established  their  domicil 
immediately  after  the  marriage,  and  where  it  appeared  that  it  was  their 
intention  to  fix  the  principal  place  of  their  business,  and  to  raise  their 
family,  and  that  this  domicil  was  denominated  their  matrimonial  domi> 
oil.  Court  of  Pan,  1835,  affirmed  in  the  Court  of  Cassation,  December, 
1836,  Journal  du  Palais,  1837,  1,  537. 

Giovanetti  v.  Orsini,  Sirey  (1855),  699,  is  the  converse  of  the  cases 
cited.  In  that  case  a  Frenchman,  while  domiciled  in  Tuscany,  married 
an  Italian  woman  in  Florence.  They  afterwards  removed  to  France. 
On  her  death,  the  question  arose  in  France  as  to  the  matrimonial  regime 
governing  the  estate  of  the  deceased  wife.  There  had  been  an  agree- 
ment, sulisequent  to  marriage,  with  respect  to  property,  not  valid 
under  the  French  law.  The  court  held  that  the  maniage  having  been 
contracted  at  Florence,  and  the  parties  having,  at  tlie  epoch  of  their 
marriage,  fixed  their  matrimonial  domicil  in  Tuscany,  the  marriage 
was  necessarily  under  the  influence  of  the  Roman  law,  which  governed 
such  matters  in  Tuscany,  according  to  which,  agreements  subsequent 
to  marriage  were  authorized  and  valid.     Cole  on  Domicil,  41. 

Morand  V.  Commune  de  Mezere,  Sirey  (1873),  pt.  II.,  148,  much 
relied  on  by  the  defendants,  is  not  in  point.  The  parties  were  married 
in  Sardinia,  and  then  removed  to   France.     The  husband  settled  in 


SECT,  v.]  BOND   V.   CUMMINGS.  239 

Paris,  and  had  his  principal  establishment  there,  but  did  not  obtain 
authorization  from  the  government.  His  daughter  was  born  in  France. 
He  died  in  1855,  and  his  widow  in  1867,  making  the  commune  her 
residuary  legatee.  The  court  held  that  Morand  was  a  foreigner,  and 
so  were  his  wife  and  daughter,  and  therefore  the  laws  of  France  did 
not  govern  the  succession.  The  effect  of  a  French  marriage,  followed 
bv  a  conjugal  domicil  in  France,  was  in  no  wise  involved. 

I  think  it  is  clearly  shown,  not  only  by  the  testimony  of  the  French 
lawyers,  who  were  witnesses  in  this  case,  but  also  b}-  the  French  deci- 
sions, that  it  is  the  law  of  that  country  that  the  marriage  of  a  foreigner 
in  France,  without  any  contract,  followed  by  a  conjugal  domicil  in 
France,  will  subject  the  property  of  the  married  persons  to  the  com- 
munity law,  and  that  a  government  authorization  under  Article  13  of 
the  Code  is  not  necessar}-  to  the  establishment  of  such  a  domicil. 

The  decree  of  the  chancellor  should  be  affirmed. 

Decree  unanimously  affirmed.^ 


BOND  V.  CUMMINGS. 
Supreme  Judicial  Court  of  Maine.    1879. 

[Reported  70  Maine,  125.] 

LiBBEY,  J.  This  is  trespass  against  the  defendant,  as  sheriff  of 
Aroostook  Count}',  for  a  mare.  The  defendant  justifies  the  taking  b^* 
his  deputy  by  virtue  of  an  attachment  of  the  mare  as  the  property  of 
John  Bond,  the  plaintiff's  husband,  on  a  writ  in  favor  of  R.  S.  Starrett 
against  him. 

The  plaintiff  claims  title  to  the  mare  by  virtue  of  a  purchase  from 
her  husband  while  living  with  him,  and  having  no  separate  support,  in 
the  province  of  New  Brunswick,  from  which  province  tiiey  moved  into 
this  State  about  the  time  of  the  attachment.  No  purchase  is  claimed 
to  have  been  made  in  this  State. 

By  the  law  of  New  Brunswick  a  married  woman,  living  with  licr 
husband  and  having  no  separate  maintenance,  cannot  acquire  title  to 
property  by  purchase  from  him.  The  validity  of  tiie  contract  under 
which  the  plaintiff  claims  title  must  be  determined  by  the  law  of  that 
province. 

"  Matters  bearing  upon   the  execution,  the  interpretation,  and   the 

1  Ar.c.  Mason  v.  Fuller,  36  Conn.  160;  Davenport  v.  Carnes,  70  111.  46.');  Hricn  v. 
Marohildon,  Rep.  .luil.  Quebec,  1.5  C.  S.  318. 

Tlii.s  is  true  even  tliou^h  the  niarriape  wa.s  abroail  at  the  woman's  domicil,  and  the 
wife  ahvavs  remains  there.  Succession  of  McKeniia,  23  La.  Ann.3t)();  IJreton  v.  Miles, 
8  Paige,  261  ;  18  Cluuet,  549  (French  Cass.  9  March,  '91)  ;  19  Clunel,  1008  ((icneva, 
18  March,  '82).  — Kd. 


KJ 


240  FKIERSON   V.   WILLIAMS.  [CHAP.  VIL 

validity  of  a  contract  are  determined  by  the  law  of  the  place  where  the 
contract  is  made."  Scudder  v.  Union  National  Bank,  91  U.  S.  406. 
Story,  Conf.  of  Law,  §§  242,  243. 

Bringing  the  mare  into  this  State  gave  the  plaintiff  no  title  which  she 
did  not  acquire  by  virtue  of  the  purchase  from  her  husband,  by  the  law 
of  New  Brunswick  ;  and  the  mare  was  legalb'  attachable  here  as  the 
property  of  the  plaintiff's  husband.  Plaintiff  nonsuit.^ 


'< 


< 


FRIERSON    V.  WILLIAMS. 

Supreme  Court,  Mississippi.     1879. 

[^Reported  57  Mississippi,  451.] 

George,  C.  J.^  The  plaintiff  in  error  filed  his  bill  in  the  Chancery 
Court  of  Coahoma  County  against  John  Williams  and  his  wife  for  the 
purpose  of  collecting  out  of  the  separate  estate  of  Mrs.  Williams  a 
note  for  six  thousand  and  fifty  dollars,  made  by  Williams  and  wife, 
in  February,  1873,  payable  to  the  order  of  Wilhams,  the  husband,  and 
by  him  indorsed  to  the  plaintiff  in  error  for  money  then  advanced  by 
the  latter  to  said  Williams.  The  note  was  made  at  New  Orleans,  in 
the  State  of  Louisiana,  where  Williams  and  his  wife  reside.  The 
property-  sought  to  be  charged  with  the  debt  is  land  situated  in  Coa- 
homa County,  and  is  the  separate  estate  of  Mrs.  Williams,  under  a 
devise  made  to  her  by  her  sister,  Mrs.  McGuire,  who  died  in  1863, 
By  her  will  she  provided  as  follows:  "My  whole  estate,  real  and 
personal,  shall  go  to  my  sisters,  Ellen  Mayes,  wife  of  R.  B.  Mayes, 
aud  Louisa  WiUiams,  the  wife  of  John  Williams,  for  and  during  their 
natural  lives  ;  and  this  bequest  is  to  their  sole  and  separate  use  in 
which  their  husbands  respectively  shall  have  no  right  or  interest."  .   .   . 

It  is  next  insisted  that  b}-  the  law  of  Louisiana  the  promissory  note 
of  the  wife,  made  as  suret}'  for  her  husband,  is  void  for  want  of  the 
capacity  of  the  wife  to  enter  into  such  a  contract,  and  that,  being  void 
by  the  lex  loci  contractus,  it  is  void  everywhere.     This  position  is  true, 

'  So  generally,  when  personal  property  falling  to  the  wife  becomes  the  husband'? 
by  the  law  of  their  domicil,  a  subsequent  change  of  domicil  will  not  alter  the  existing 
rights  of  the  husband.  Cahalan  v.  Monroe,  70  Ala.  271  ;  Lichtenberger  v.  Graham, 
50  Ind.  288 ;  Lyon  v.  Knott,  26  Miss.  548 ;  Davis  v.  Zimmerman,  67  Pa.  70.  And  sc 
as  to  the  wife's  rights  in  her  husband's  chattels ;  Kraemei  v.  Kraemer,  52  Cal.  302. 

Conversely,  where  personal  property  falling  to  a  wife  becomes  her  separate  estate, 
removal  into  another  State  does  not  affect  her  rights.  Hinman  v.  Parkis,  33  Conn. 
188;  Townes  v.  Durbin,  3  Met.  (Ky.)  352  ;  Reid  v.  Gray,  37  Pa.  508. 

When  a  wife  becomes  trustee  of  personal  property  in  accordance  with  the  law  of 
the  domicil,  she  continues  to  hold  the  position  after  removal.  Schluter  v.  Bowery 
Sav.  Bank,  117  N.  Y.  125,  22  N.  E.  572. —  Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT,  v.]  FUIERSON    V.   WILLIAMS.  241 

if  the  giving  of  the  uote  has  no  other  effect  than  what  it  purports  to 
have  on  its  face,  viz.,  a  personal  obligation  of  the  wife.  But  it  is 
charged  in  the  bill  and  admitted  by  the  demurrer,  that  at  the  time  this 
note  was  made  in  Louisiana  the  wife  had  a  separate  estate  in  realty, 
situated  in  this  State,  and  that  she  contructetl  with  reference  to  this 
separate  estate,  and  intended  to  charge  it  by  the  promissory  note  in 
controversj-.  Whether  this  purpose  can  be  carried  out  with  reference 
to  realty  here,  notwithstanding  the  fact  that  the  note  is  void  b}-  the 
law  of  Louisiana,  is  the  question  presented  for  our  consideration.  The 
note,  if  made  here,  would  be  equally  void  by  our  laws  to  bind  the  wife 
personally  ;  yet,  notwithstanding  this,  it  would  be  held,  if  made  with 
the  intent  and  purpose  alleged  in  the  bill,  to  be  a  valid  charge  against 
her  separate  estate  situated  here. 

It  is  generally  true  that  the  capacity  of  a  married  woman  to  make  a 
contract  will  be  determined  by  the  law  of  her  domicil  ;  but  this  is  not 
the  rule  when  her  contract  relates  to  her  estate  in  realty,  situated  in 
another  jurisdiction.  Judge  Story  says  :  "  The  general  principle  of 
the  common  law  is  that  the  laws  of  the  place  where  such  [immovable] 
property  is  situate  exclusively  govern  in  respect  to  the  rights  of  the 
parties,  the  modes  of  transfer,  and  the  solemnities  which  should  ac- 
company them.  The  title,  therefore,  to  real  property  can  be  acquired, 
passed,  and  lost  only  according  to  the  lex  rei  sitm."  Story,  Confl. 
Laws,  §  424.  And  quoting  from  Sir  William  Grant :  "  The  validity  of 
every  disposition  of  real  estate  must  depend  upon  the  law  of  the  country 
in  which  that  estate  is  situated  ;  "  he  says  :  "■  The  same  rule  would  also 
seem  equally  to  apply  to  express  liens  and  to  imi)liod  liens  upon  im- 
movable estate."  Mr.  Burge,  as  quoted  by  Judge  Story,  in  a  note  to 
section  445  of  the  same  work,  says  :  "  The  power  to  alienate  immovable 
property  by  contract  was  a  quality  impressed  on  the  property  ;  tiiat  the 
law  from  which  it  was  derived,  or  by  which  it  is  regulated,  was  a  real 
law;  and  that  the  existence  of  this  power  and  the  validity  of  its  exer- 
cise must  be  decided  by  the  law  of  the  country  in  which  the  propertv 
was  situated."  And  it  is  said  by  a  learned  author :  "No  sovereignty 
can  permit  the  intrusion  on  its  soil  of  a  foreign  law.  Such  a  law 
may  be  accepted  by  comity  in  cases  in  which  a  contested  issue,  the 
law  applicable  to  which  is  foreign,  comes  up  for  determination  in 
a  home  court.  But  the  imposition  of  any  other  law  than  the  lex 
rei  sitce  as  to  property,  would  be  to  give  foreign  subjects  and  foreign 
laws  an  absolute  control,  unchecked  by  any  discretion  of  the  home 
courts,  over  a  subject-matter  essential  not  merely  to  the  ind('|)endence, 
but  the  vitality  of  the  State.  .  .  .  The  mischief  is  cured  by  tlu'  adop- 
tion of  the  rule  lux  rei  sitce  regit;  whoever  may  be  the  owner,  or 
wherever  the  contract  was  made,  the  law  of  the  land  reigns.  Xo 
other  law,  either  as  to  the  transfer  or  control  of  the  property,  is  to 
intrude."  Wharton,  Confl.  Laws,  §§  278,  280.  These  rules  apply 
to  marital  rights  in  realty.  Judge  Story,  after  speaking  of  the  rights 
of  husband  and   wife  as  to  i)ersonal  properly  sitimtcd  beyond  the  mat- 

VOL.  II,  — 16 


242  FP.IEKSON    V.    WILLIAMS.  [CHAP.  VIL 

rimonial  domicil,  says:  "But  real  oi'  immovable  property  oiiglit  to 
be  left  to  be  adjudged  by  the  lex  rei  sitce  as  not  within  the  reach 
of  any  extraterritorial  law;"  and  in  Vertner  i\  Humphreys,  14  S.  & 
M.  130,  143,  this  court  said  that,  "As  to  immovable  propertv,  the 
law  of  the  place  where  it  is  situated  fixes  the  rights  of  husband  and 
wife  in  it." 

The  application  of  these  principles  will  furnish  a  safe  solution  of  the 
question  under  consideration.  The  capacity  of  Mrs.  Williams  to  take 
this  property,  and  her  rights  and  powers  over  it,  are  derived  from  and 
regulated  by  the  law  of  this  State.  Her  power  of  disposition  and  deal- 
ing with  it  are,  by  our  laws,  impressed  on  the  property  itself.  As  to 
none  of  these  things  has  the  law  of  Lonisana  the  slightest  influence. 
If  she  had  made  a  contract  expressly  disposing  of  this  property,  it  will 
not  be  denied  that,  though  void  by  the  laws  of  Louisiana,  either  for 
her  want  of  capacity  to  act,  or  the  want  of  the  observances  of  the  forms 
and  solemnities  prescribed  by  those  laws,  yet,  if  valid  by  the  law  of 
this  State,  it  would  have  been  good.  The  contract  here  is  not  strictly 
of  that  character,  yet  the  making  of  it  is  the  exercise  of  the  power  of 
the  wife  to  dispose  of  her  estate;  for  whenever  that  power  is  denied, 
the  power  to  charge  it  with  her  debts  is  denied  also,  and  the  charge 
can  only  be  made  effectual  by  the  actual  or  threatened  alienation  of 
the  estate,  under  a  decree  of  the  Chancery  Court.  The  charging  of  her 
separate  estate  for  the  pa3-ment  of  money  does  not  [)ass  an}'  actual 
interest  in  the  land,  but  it  is  the  first  and  essential  step  for  a  judicial 
disposition  of  the  estate  to  satisfy  the  charge,  and  the  exercise  of  a 
power  of  administration  and  control  over  it,  which,  as  we  have  seen,  is 
governed  solely  bj-  the  lex  rei  sitce.  To  show  that  this  is  its  true  na- 
ture, we  have  only  to  suppose  that,  by  the  law  of  Louisiana,  the  note 
was  a  charge  on  her  realty  situated  there,  and  was  not  b}-  our  law 
a  charge  on  the  realt}'  situated  here.  In  such  a  case,  it  would  be 
evident  that  an  attempt  to  enforce  it  here  against  her  real  estate  could 
not  succeed.  If  success  could  attend  such  an  effort,  then  the  several 
rights  and  powers  of  husband  and  wife,  as  to  realtv,  would  not  be  fixed 
and  governed  by  the  laws  of  the  situs  ;  and  the  act  of  a  wife,  done  in 
a  foreign  State,  would  have  the  effect  of  disposing  of  her  realty  here, 
contrary  to  our  laws. 

But  there  is  no  real  conflict  between  the  laws  of  Louisiana  and  Mis- 
sissippi in  reference  to  tlie  contract.  Bv  both  laws  the  note  is  void  for 
what  it  purports  to  be  on  its  face,  —  a  personal  oliligation  of  the  wife  ; 
and  it  is  void  for  the  same  reason  in  both,  viz.,  the  personal  incapacity 
of  the  wife.  The  difference  between  the  two  laws  is  as  to  the  effect 
on  the  real  property  of  the  wife  in  the  respective  jurisdictions  of  the 
two  States,  and  as  to  which,  as  we  have  above  seen,  the  law  of  the 
State  in  which  the  realty  is  situated  is  the  exclusive  test.  If  the  note 
had  not  been  void  b}'  our  laws,  as  the  personal  obligation  of  the  wife, 
we  should  nevertheless,  out  of  comit}'  to  a  sister  State,  adjudge  it  void 
to  that  extent,  if  attempted  to  be  enforced  here  :  but  the  principle  of 


SECT,  v.]  BONATI   V.   WELSCH.  243 

comity  does  not  require  a  State  to  regard  the  laws  of  any  other  State, 
so  far  as  they  may  affect  contracts  in  relation  to  real  estate  situated  in 
the  former  State. 

Decree  reversed^  demurrer  overruled,  and  cause  remanded} 


BONATI  V.  WELSCH. 

Court  of  Appeals,  New  York.     1861. 

[Reported  24  New  York,  157.] 

Action  by  a  widow  residing  in  France,  against  the  executors  and 
legatees  of  her  deceased  husband,  to  recover  the  value  of  certain  real 
estate  inherited  by  her,  which  was  sold  with  her  assent,  and  the  pro- 
ceeds received  by  her  husband  while  she  was  living  and  domiciled  with 
him  in  France.'^ 

Davies,  J.  By  section  1387  of  the  Code  Napoleon,  the  law  in  ref- 
erence to  the  conjugal  relation  is  prescribed  in  default  of  special 
agreement ;  and  by  section  1393,  in  default  of  special  stipulations, 
the  law  of  community  prevails.  By  sections  1401  and  1402,  the  com- 
munity consists  of  such  movable  property  as  falls  to  either  party  dur- 
ing the  marriage  by  any  title  whatever,  and  all  immovables  acquired 
during  marriage.  By  section  1404,  the  immovables  which  fall  to  them 
during  marriage  by  title  of  succession  do  not  enter  into  the  community. 
Section  1433  provides  that  if  an  immovable  belonging  to  one  party  be 
sold  and  the  price  paid  into  the  community,  tliere  is  ground  for  the 
deduction  of  the  price  so  paid  in  from  the  community  for  the  benefit  of 
the  party  who  was  proprietor  of  the  immovable  sold.  Section  1436 
declares  that  recompense  for  the  price  of  an  immovable  belonging  to 
the  wife  is  claimable  by  her  out  of  the  property  of  the  husband,  in 
cas(3  of  the  insufliciency  of  the  goods  of  the  community.  By  section 
1470,  on  the  dissolution  of  tlie  community,  from  tlie  mass,  each  one 
deducts  the  price  of  immovables  which  have  been  alienated  during 
the  communit}',  and  for  which  compensation  has  not  been  made.  By 
section  1471,  the  shares  of  the  wife  take  precedence  of  the  lui.sband, 
and  by  section  1472  the  wife  is  entitled,  in  case  of  insufliciency  in  the 
community,  to  exercise  her  claims  out  of  the  property  of  tlie  liusl)and. 
Section  1441  declares  that  the  death  of  either  of  the  parties  worl<s  a 
dissolution  of  the  community,  and  by  section  1453  after  the  dissolution 
the  wife  has  the  power  to  accept  or  renounce  it.     By  section  14D3,  tlie 

1  Ace.  Wick  V.  Dawson,  42  W.  Va.  43,  24  S.  E.  .')H7.  And  seo  Wood  v.  Wheeler, 
111  N.  C.  231. 

So  generally,  the  effect  of  a  marriage  contract  cxcciiKmI  .-ihroa.i  iij)()n  land  i.s  dctcr- 
triined  by  the  lex  rei  sitfi;.  Heine  v.  Mecliaiiics'  &'rrad(!r.s'  In.surancc  Co.,  4.5  La.  .\nn. 
770,  1.3  So.  1  ;   Richardson  v.  Do  (;ivervillc,  107  Mu.  4'2'2,  17  S.  W.  974.  —  Ed. 

2  The  statement  of  facts  and  tin-  ili^scntinir  .q,iniMii  mic  ciiiitlcd.—  Ki>, 


244  BONATI    V.    WELSCH.  [CHAP.  VII. 

wife  who  renounces  has  a  right  to  receive  the  price  of  the  immovables 
alienated,  for  which  compensation  has  not  been  made  to  her.  And  by 
section  1495,  she  ma}'  exercise  all  actions  and  previous  demands  as 
well  against  the  goods  of  the  community  as  against  the  personal  goods 
of  her  husband. 

From  this  examination  of  the  F'rench  law  it  follows  that  the  property 
of  this  plaintiff  which  came  to  her  during  marriage,  by  succession  from 
her  mother,  being  immovable,  still  belongs  to  her ;  that  she  could 
alienate  it,  as  she  did,  with  her  husband's  consent,  that  he  had  the 
management  of  it,  and  had  a  right  to  retain  the  avails  of  the  sale,  and 
keep  them  during  the  existence  of  the  community,  and  had  a  right  to 
the  enjo3'ment  of  its  emoluments  ;  and  that  on  his  death,  he  having 
received  the  price  of  its  alienation,  she  had  a  valid  claim  for  that 
price,  first  to  be  paid  out  of  the  property  of  the  community,  and  that 
failing,  out  of  the  property  of  the  husband,  and  that  her  claim  was 
entitled  to  priority  of  payment. 

Such  would  have  been  the  rights  of  the  parties,  if  both  had  con- 
tinued to  reside  in  France. 

Are  these  rights  changed  by  the  circumstance  of  the  husband  coming 
to  this  countr}'  and  dj'ing  Iiere  ? 

That  the  price  of  the  wife's  immovables  thus  sold  and  realized  hy  tbe 
husband,  constituted  a  valid  debt  against  him  by  the  laws  of  France, 
where  this  marriage  took  place,  admits  of  no  doubt.  Is  the  debt  dis- 
charged b}-  the  husband's  coming  to  this  country? 

The  rule  laid  down  b}-  Parsons  on  Contracts,  2  Pars.  110,  would 
seem  to  answer  this  suggestion.  He  sa\'S  :  "  It  is  the  general  rule, 
both  in  England  and  in  this  country,  that  the  incidents  of  marriage 
and  contracts  in  relation  to  marriage,  as  settlement  of  property  and 
the  like,  are  to  be  construed  by  the  law  of  the  place  where  these  were 
made ;  for  any  different  construction  cannot  be  supposed  to  cai'ry  into 
effect  the  intentions  and  agreements  of  the  parties,  or  to  deal  with 
them  justly." 

Many  cases  are  cited  to  sustain  the  text,  and  among  others,  those  in 
our  own  State,  of  Decouche  v.  Save  tier,  3  John.  Ch.  190 ;  Crosby  v. 
Berger,  3  Ed.  Ch.  538,  and  De  Barante  v.  Gott,  6  Barb.  492.  These 
cases  hold  that  where  there  is  an  express  contract  between  the  parties, 
that  contract  will  be  enforced,  and  the  rights  acquired  under  it  main- 
tained and  upheld,  tliough  there  be  a  change  of  domicil.  Rights  de- 
pendent on  the  nuptial  contract  are  governed  b}-  the  lex  loci  contractus. 
There  would  be  no  difficulty  in  this  case,  therefore,  in  sustaining  the 
rights  and  claims  of  the  plaintiff,  if  the  provisions  of  the  Code  Na- 
poleon had  been  embraced  in  an  express  contract.  Some  foreign 
jurists  hold  that  the  law  of  matrimonial  domicil  attaches  all  the 
rights  and  incidents  of  marriage  to  it  propria  vigore,  and  independ- 
ent of  any  supposed  consent  of  the  parties.  1  Boullenois  Obser., 
29,  pp.  741,  750,  757,  758 ;  Huberus,  Lib.  1,  tit.  3,  De  Coufl. 
Leg.  §  9. 


SECT,  v.]  BONATI    V.    WELSCII.  245 

Others  bold  that  there  is  in  such  cases  an  impUed  consent  of  the 
parties  to  adopt  the  law  of  the  matrimonial  domicil  by  way  of  tacit 
contract,  and  then  the  same  rule  applies  as  in  cases  of  express  nuptial 
contracts.  Dumoulin  was  the  author,  or  at  least  the  most  distin- 
guished advocate,  of  this  doctrine.  Story  on  Conflict  of  Laws,  §  147. 
This  rule  has  also  been  adopted  by  liouhier,  Hertius,  Pothier,  Alerlin, 
and  other  distinguished  jurists.     Id.  §  1-18. 

Story,  after  reviewing  the  opinions  of  jurists  and  the  decisions  having 
a  bearing  upon  the  question,  sums  up  the  whole  by  saying,  in  section 
159,  that  perhaps  the  most  simple  and  satisfactory  exposition  of  the 
subject,  or  at  least  that  which  best  harmonizes  with  the  analogies  of 
the  common  law,  is,  that  in  the  case  of  a  marriage,  where  there  is  no 
special  nuptial  contract,  and  there  has  been  no  change  of  domicil,  the 
law  of  the  place  of  celebration  of  the  marriage  ought  to  govern  the 
rights  of  the  parties  in  respect  to  all  pei'sonal  oi-  movable  property, 
whenever  acquired  or  wherever  situate  ;  but  that  real  or  immovable 
property  ought  to  be  left  to  be  judged  by  the  lex  rei  sites,  as  not  within 
the  reach  of  any  extraterritorial  law.  When  there  is  any  special 
nuptial  contract  between  the  parties,  that  will  furnish  a  rule  for  the 
case,  and,  as  a  matter  of  contract,  ought  to  be  carried  into  effect 
everywhere,  under  the  general  limitations  belonging  to  all  classes  of 
contracts. 

In  this  case  a  new  element  is  introduced  by  the  removal  of  the  hus- 
band from  France,  and  consequently  a  change  of  his  domicil. 

In  section  161,  Story  quotes  from  Bouhier,  who  lays  down  the  rule 
in  general  terms  that  in  relation  to  the  beneficial  and  pecuniarv  rights 
{les  droits  utiles  et  pecxmiaires)  of  the  wife,  which  result  from  the 
matrimonial  contract,  either  express  or  tacit,  the  husband  has  no  power 
by  a  change  of  domicil  to  alter  or  change  them,  according  to  the  rule 
nemo  potest  mutare  consilium  suum  in  altenus  iyijuriam,  and  he 
insists  that  this  is  the  opinion  of  jurists  generally.  To  the  same 
effect  that  the  change  of  domicil  by  the  husband  shall  not  deprive 
the  wife  of  any  separate  interests  or  separate  rights  she  may  have, 
is  the  case  of  Harteau  v.  Harteau,  14  Pick.  181. 

And  this  rule  is  a  reasonable  and  proper  one.  As  a  general  rule, 
the  domicil  of  the  wife  follows  that  of  the  husband,  and  there  is  much 
force  in  the  argument,  that  in  tlie  absence  of  an  express  agreement 
defining  the  matrimonial  rights,  the  law  of  the  contemplated  or  any 
future  domicil  should  govern.  But  in  the  case  now  under  considera- 
tion, the  domicil  of  the  wife  has  not  been  changed,  and  fhe  rights  she 
acquired  b}'  the  tacit  contract  made  in  tlie  matrimonial  don)ieil  are 
not,  we  lliink,  lost  or  impaired  by  tlie  change  of  the  domicil  of  the 
husband.  Those  rights  did  not  mature  until  the  death  of  the  husl)and. 
They  were  postponed  till  the  happening  of  this  event,  and  tlien  by  tiie 
law  of  the  matrimonial  domicil.  I)y  virtue  of  the  tacit  contract  made 
l)etween  the  parties,  the  right  of  tiie  wife  to  a  return  of  all  licr  indi- 
vidual property  received  by  the  Imsljaiid,  revives  and  can  be  ciifurctd. 


246  LA    SELLE    V.    WOOLEKV.  [OIIAP.  VII. 

We  see  no  reasons  of  public  policy  why  rights  thus  secured  should 
not  be  recognized  or  enforced,  equally  as  those  arising  from  an  express 
contract.  The  judgment  must  be  affirmed,  with  costs. '^ 

'    CoMSTOCK,  C.  J.,  Denio,  Hoyt,  and  James,  JJ.,  concurred.    Mason,  J., 
dissented. 


LA   SELLE  V.  WOOLERY. 

Supreme  Couut  of  Washington.      1895,  1896. 

[Reported  n  \Vasfii7igton ,  SS7  ;  14   Washington,  70.] 

Hoyt,  C.  J.^  Appellant,  William  F.  Collins,  in  a  suit  brought  in 
King  County  against  the  respondent,  William  La  Selle,  duly  recovered 
judgment.  To  this  action  and  judgment  the  respondent,  Marian  E.  La 
Selle,  wife  of  said  William  La  Selle,  was  not  a  party.  Execution 
issued  on  said  judgment,  which  was  placed  in  the  hands  of  J.  H. 
Woolery,  sheriff  of  King  County,  the  other  appellant.  He  made  a 
levy  upon  a  piece  of  real  estate  situated  in  King  County,  of  which  the 
paper  title  was  in  the  name  of  said  Marian  E.  La  Selle.  This  suit  was 
then  brought  by  the  respondents,  and  thereby  they  sought  to  enjoin 
the  sale  of  the  property  levied  upon,  and  to  have  it  decreed  that  such 
property  was  not  subject  to  the  lien  of  the  judgment. 

It  was  conceded  that  the  property,  though  standing  in  the  name  of 
the  wife,  Marian  E.  La  Selle,  was  the  community  property  of  herself 
and  her  husband,  William  La  Selle.  It  was,  therefore,  under  the  rule 
established  by  numerous  decisions  of  this  court,  subject  to  the  lien  of 
the  judgment  against  the  husband  alone  if  the  debt  upon  which  such 
judgment  was  rendered  was  that  of  the  community.  It  is  equally  well 
established  by  the  adjudications  of  this  court  that  such  property  was 
not  subject  to  the  lien  of  such  judgment  if  the  debt  for  which  it  was 
rendered  was  the  separate  debt  of  the  husband.  It  must  follow  that 
the  natui-e  of  the  debt  which  was  the  foundation  of  the  judgment  is  the 
material  question  to  be  determined  upon  this  appeal.  If  it  was  that  of 
the  community,  the  sheriff  should  have  been  allowed  to  proceed  to 
satisfy  the  judgment  by  a  sale  of  the  property.  If  it  was  the  debt  of 
the  husband  alone,  tlie  appellants  were  rightfully  restrained  from  pro- 
ceeding further  against  the  property  in  question.  The  foundation  of 
this  judgment  was  one  against  the  husband  alone,  made  and  entered  in 
the  State  of  Wisconsin,  and  the  foundation  of  that  one  was  a  liability 
incurred  by  the  husband  to  the  appellant  Collins  in  the  prosecution  of 
his  business  as  a  contractor  and  builder  and  proprietor  of  a  sash  and 
door  factor}^  and  was  for  materials  sold  to  him  to  be  used  in  the  con- 

1  Arc.  Kendall  v.  Coons,  1  Bush.  530;  Columbia  Bank  v.  Walker,  14  Lea,  299. 
—  Ed. 

-  Part  of  the  oj)inion  is  omitted. — Ed. 


SECT,  v.]  LA   SELLE    V.    WOOLEKY.  247 

struction  of  bouses  and  to  suppk  his  factoiy.  At  the  time  this  liability 
was  incurred,  and  the  judgment  in  Wisconsin  rendered,  the  respond- 
ents were  living  together  as  husband  and  wife  in  the  State  of  Wisconsin. 
Afterward  they  removed  from  said  State,  and,  from  a  time  preceding 
the  date  of  the  judgment  rendered  in  King  County,  had  been  living 
together  as  husband  and  wife  in  this  State.  .   .   . 

The  substantial  question  presented  by  the  facts  is  as  to  the  status  of 
the  debt  which  was  the  foundation  of  the  judgment  in  Wisconsin  in 
reference  to  the  property  of  the  husband  or  husband  and  wife  situated 
in  that  State.  It  appears  from  the  statutes  set  out  in  tlie  answer  that 
in  that  State  there  is  no  such  thing  as  community  property  as  understood 
here,  nor  is  there  any  such  thing  as  separate  property  of  the  husband  as 
defined  bv  our  laws.  The  wife  alone  could  own  separate  property,  and 
tlie  provisions  in  relation  to  its  acquisition  were  substantially  the  same 
as  in  this  State.  All  other  property  was  that  of  the  husband,  whether 
it  was  acquired  in  such  a  manner  as  to  make  it  under  our  laws  his 
separate  property  or  that  of  the  community.  And  all  of  his  property 
under  the  laws  of  that  State  could  be  subjected  to  the  payment  of  debts 
incurred  by  him  alone.  It  will  be  seen  from  these  provisions  that 
a  debt  incurred  by  the  husband  could  there  be  enforced  against  all  of 
the  property  acquired  by  the  husband  and  wife  either  before  or  after 
marriage  excepting  such  as  under  the  laws  of  that  State  would  be  the 
separate  property  of  the  wife.  This  is  substantially  the  result  of  the 
laws  of  this  State  as  interpreted  by  former  decisions  of  this  court. 

In  our  opinion  the  comity  which  one  State  owes  to  another  goes  to 
the  substance  rather  than  the  form  of  things.  If  a  certain  right  is 
given  in  one  Slate  as  to  property  of  a  certain  nature,  comity  would 
require  that  those  riglits  should  be  enforced  in  another  State  as  to 
property  of  the  same  nature  though  it  might  be  called  by  a  different 
name.  In  the  State  of  Wisconsin  property  which  was  acquired  by  the 
joint  labors  of  the  husband  and  wife,  tiiough  called  the  proi)erty  of  the 
husband,  was  subject  to  the  payment  of  debts  incurred  by  tlie  husband 
in  tlie  prosecution  of  business  for  the  support  of  the  family.  I'lopcMfy 
acquired  in  the  same  manner  in  this  State  belongs  to  the  community, 
but  is  subject  to  a  liability  incurred  by  the  liusband  alone  in  the  prose- 
cution of  business  for  tlie  same  object.  Hence,  uiuU-r  the  rule  above 
suggested,  comity  requires  that  a  debt  which  under  the  laws  of  that 
State  could  be  enforced  against  property  which  from  the  nature  of  its 
acquisition  would  be  that  of  the  community  in  this  State,  should  be  here 
enforced  against  i)roperty  belonging  to  the  community. 

There  is  nothing  in  the  policy  of  our  legislation  which  will  prevent 
the  application  of  the  rule  above  stated  to  the  facts  of  tiiis  case.  On 
the  contrary,  the  general  policy  of  tliis  State  ui)on  tlie  question  of  tlie 
liability  of  propertv  of  the  commiuiity  and  of  the  respective  spouses  for 
debts  incurred  bv  the  husl)and  alone  in  the  prosecution  of  any  biininess 
is  in  subslatilially  the  same  line  as  that  of  llu;  State  of  Wisconsin. 
But  wliether  it  is  or  not,  so  long  as  tlu;  riglits  of  the;  parties  arc  adjtidi- 


248  LA    SELLE    V.    WOOLERY.  [CHAP.  VII, 

cated  under  the  laws  of  this  State,  its  citizens  have  no  ground  of  com- 
plaint, whatever  may  be  the  result  as  to  those  of  other  States.  And 
since  what  we  have  said  has  been  founded  upon  our  statute,  and  the 
rights  adjudicated  thereunder  have  been  in  the  light  of  the  facts  shown 
by  the  record,  the  respondents  cannot  complain. 

The  judgment  will  be  reversed,  and  the  cause  remanded  with  in. 
structions  to  overrule  the  demurrer  to  the  affirmative  defences  pleaded 
in  the  amended  answer. 

Eehearing  granted. 

Gordon,  J.  A  majority  of  the  court  are  of  the  opinion  that  a  wrong 
conclusion  was  reached  at  the  former  hearing. 

The  case  is  full}'  stated  in  the  former  opinion,  in  the  course  of 
which  opinion  the  court  said:  "■  If  a  certain  right  is  given  in  one 
State  as  to  property  of  a  certain  nature,  comity  would  require  that 
those  rights  should  be  enforced  in  another  State  as  to  property  of 
the  same  nature." 

Upon  further  consideration,  we  think  that  this  is  extending  the 
doctrine  of  comit}'  too  far.  While  comit}'  might  require  that  rights 
so  acquired,  against  personal  propert}-  mereh",  should  be  enforced  in 
this  State  as  against  such  property  (Harrison  v.  Sterr}-,  5  Cranch,  289  ; 
Wharton,  Conflict  of  Laws,  §  324),  we  do  not  tiiink  it  ought  to  be 
extended  to  property  subsequent!}*  acquired  in  this  State,  although  of 
the  "same  nature,"  and  this  principle  is  wholly  inapplicable  to  real 
property.  The  law  of  the  place  where  the  real  property  is  situated 
must  be  held  to  control  its  disposition,  whether  by  voluntary  or  forced 
sale.     McCormick  v.  Sullivant,  10  Wheat.  192. 

Upon  this  subject  no  less  a  writer  than  Story  has  said:  ''AH  the 
authorities  in  both  countries  [England  and  America],  so  far  as  the}' 
go,  recognize  the  principle  in  its  fullest  import,  that  real  estate,  or  im- 
movable property,  is  exclusively  subject  to  the  laws  of  the  government 
within  whose  territory  it  is  situate."  Story,  Conflict  of  Laws,  §  428. 
"Any  title  or  interest  in  land  or  in  otlier  real  estate  can  only  be 
acquired  or  lost  agreeably  to  tlie  law  of  the  place  where  the  same 
is  situate."     Id.  §  365. 

The  character  of  tlie  property,  as  regards  the  question  of  its  being 
the  separate  property  of  either  of  the  spouses,  or  the  property  of  the 
communit}'  consisting  of  both  spouses  or  otherwise,  is  fixed  b}'  the  law 
of  the  State  where  such  property,  if  real  property,  is  situated.  So, 
too,  the  character  of  the  debt  is  determined  by  the  law  of  the  place 
where  it  arose.  If  by  the  law  of  Wisconsin  it  was  the  sole  individual 
debt  of  the  husband,  it  retained  that  character  here.  Its  status  was 
fixed  by  the  law  of  the  place  of  its  creation.  The  debt  which  the 
appellants  are  here  seeking  to  enforce,  being  by  the  law  of  Wisconsin 
where  it  arose  merely  the  separate  individual  debt  of  the  husband, 
enforceable  only  against  his  separate  individual  property,  it  follows 
that  the  judgment  rendered  upon  that  debt  cannot  be  satisfied  out  of 


SECT,  v.]  LA   SELLE    V.   WOOLERY.  249 

the  real  property  of  the  community  acquired  in  this  State  long  after 
the  debt,arose  and  judgment  was  rendered  upon  it. 

The  doctrine  of  the  common  law  is  that:  "  In  regard  to  the  merits 
and  rights  involved  in  actions,  the  law  of  the  place  where  they  origi- 
nated is  to  govern.  .  .  .  But  the  form  of  remedies  and  the  order  of 
judicial  proceedings  are  to  be  according  to  the  law  of  the  place  where 
tlie  action  is  instituted,  without  any  regard  to  the  domicil  of  tlie  par- 
ties, the  origin  of  the  right,  or  the  country  of  the  act."  Story,  Conflict 
of  Laws  (8th  ed.),  §  558. 

The  settled  rule  is  that  the  law  of  the  place  where  the  contract  was 
made  must  govern  in  determining  the  character,  construction,  and  valid- 
ity of  such  contract ;  while  the  law  of  the  pUu.-e  whcie  suit  is  instituted 
upon  the  contract  governs  as  to  "the  nature,  extent,  and  form  of  the 
remed}',  .  .  .  whether  arrest  of  the  person  or  attachment  of  the  prop- 
erty may  be  allowed  ;  whether  a  debt  is  or  is  not  discharged  by  oper- 
ation of  law,  as  insolvent  laws,  or  barred  by  statutes  of  limitation  ; 
rights  of  set-off ;  the  admissibility  and  effect  of  evidence  ;  the  modes 
of  proceeding  and  the  forms  of  judgment  and  execution."'  2  Abbott's 
Law  Dictionary,  p.  36. 

In  the  case  of  Rlanchard  v.  Russell,  13  Mass.  1  (7  Am.  Dec.  106), 
the  Supreme  Court  of  Massachusetts,  speaking  by  Chief  Justice  Parker, 
say :  — 

"But  the  courtesy,  comity,  or  mutual  convenience  of  nations,  among 
which  commerce  has  introduced  so  great  an  intercourse,  has  sanctioned 
the  admission  and  operation  of  foreign  laws  relative  to  contracts  ;  so 
that  is  now  a  principle  generally  received,  that  contracts  are  to  be  con- 
strued and  interpreted  according  to  the  laws  of  the  State  in  which  they 
are  made,  unless  from  their  tenor  it  is  perceived  that  they  were  entered 
into  with  a  view  to  the  laws  of  some  other  State.  .  .  .  The  rule  does 
not  apply,  however,  to  the  process  by  which  a  creditor  shall  attempt  to 
enforce  his  demand  in  the  courts  of  a  State  other  than  that  in  which 
the  contract  was  made.  For  the  remedy  must  be  pursuant  to  the  lav.-s 
of  the  State  where  it  is  sought ;  otherwise  great  irregularity  and  con- 
fusion would  be  introduced  into  the  form  of  judicial  proceedings." 

The  rule  has  long  been  established  in  this  court  that  the  community 
real  property  is  not  liable  for  the  separate  or  individual  debt  of  the 
husband.  Brotton  r.  T^angert,  1  Wash.  73  (23  Tac.  V>x>i)  ;  Stockand 
V.  Bartlett,  4  Wash.  730  (31  Pac.  24).  And  it  would  he  productive 
merely  of  confusion  and  disorder  to  limit  the  api)lication  of  this  rule  to 
those  debts  only  which  are  contracted  within  tliis  State. 

One  result  of  such^  limitation  would  be  tiiat  the  court  would  be 
required  in  every  case  to  resort  to  the  law  of  the  State  where  the 
debt  arose  in  order  to  determine  what  property  in  that  State  would  be 
liable  for  such  debt,  and  then  to  permit  such  judgment  creditor  to  have 
his  judgment  satisfied  out  of  like  property  of  the  judgment  debtor  in 
this  State,  without  regard  to  our  own  law  ujuju  tlie  suliject.  And  it 
would  follow   logically   from  such  a  rule  that  proi)erty  of  a  judgment 


250  ANONYMOUS.  [CHAl'.  VIl. 

debtor  which  is  by  our  law  exempt  from  le\T  and  sale  on  execution 
could  be  subjected  to  the  payment  of  a  judgment  for  a  debt  i<icurred 
in  some  sister  State  where  the  exemption  laws  were  different  from 
our  own.  All  these  questions  relate  to  the  character  and  extent  of  the 
remed}',  and  not  to  the  construction  or  validity  of  the  contract,  and 
they  are  governed  and  controlled  by  the  lex  fori,  and  not  b}'  the  lex 
loci  contractus  ■  and  to  avoid  interminable  confusion  the  distinction 
must  be  observed. 

For  these  reasons  the  order  and  judgment  of  the  Superior  Court  will 
be  affirmed. 

Scott,  Dunbar,  and  Anders,  JJ.,  concur. 

HoTT,  C.  J.  (disse?iti»ff).  The  results  which  will  flow  from  the  rule 
announced  in  the  foregoing  opinion  are  such  as  to  satisfy  me  that  it 
cannot  be  the  one  required  b}'  comitj".  A  husband  residing  in  a  sister 
State,  possessed  of  ever  so  much  property  which,  though  the  title  is 
vested  in  him,  is  held  for  the  benefit  of  himself  and  wife,  and  would  from 
the  manner  of  its  acquisition  be  here  held  to  be  community-  property,  and 
was  there  subject  to  debts  for  the  benefit  of  the  famil}-,  which  would 
here  be  held  to  be  community  debts,  can  escape  the  payment  of  all  the 
debts  which  may  have  been  contracted  on  the  faith  of  the  property  whicli 
he  owned  by  converting  such  property  into  cash  and  removing  to  this 
State  and  investing  it  in  real  estate.  That  the  laws  of  one  State  should 
be  so  construed  as  to  allow  a  debtor  in  another,  possessed  of  abundant 
means  with  which  to  pa}-  all  of  his  creditors,  to  evade  the  pa3-ment  of 
just  debts  in  this  wa}-,  does  not  correspond  with  my  ideas  of  comity. 
In  m}'  opinion  the  conclusion  reached  upon  the  former  hearing  was  the 
correct  one  and  should  be  adhered  to. 


ANONYMOUS. 

Court  of  Appeal,  Wiesbaden.     1841. 

[Reported  1  Seuffert's  Archiv,  57.] 

The  Court,  The  opinion  adopted  in  the  lower  court,  that  the 
established  rights  of  inheritance  of  the  spouses  are  to  be  determined 
not  by  the  law  of  their  domicil  at  the  time  of  the  ceremony  of  marriage, 
but  by  the  law  of  their  domicil  at  the  time  of  the  death  of  the  husband, 
is  not  in  accordance  with  the  principles  hitherto  established  in  practice  ; 
and  furthermore  the  established  doctrine  rather  holds  that  the  division 
of  propert}'  and  rights  of  inheritance  of  the  spouses,  since  the  choice  of 
domicil  depends  entirely  on  the  husband,  and  since  the  rights  founded 
upon  the  tacit  agreement  connected  with  entrance  into  the  marriage  can- 
not be  annulled  or  limited  by  the  one-sided  act  of  one  of  the  spouses, 
particularly  by  change  of  domicil,  should  be  regulated  only  by  tlie  law  of 


SECT.  Y.]  SAMUEL   V.   ARROUARD.  251 

the  domicil  at  the  time  of  the  marriage  celebration.  Juristisebe  Zeitung 
Ibr  Hanover,  1843,  Part  II.  p.  72.  8o  decided  by  the  Court  of  Appeal, 
Munich,  Nov.  3,  1847  ;  Blatter  fiir  Rechtsanwendung,  Vol.  II.  p.  92. 

It  is  of  no  importance  that  part  of  the  immovable  estate  is  in  a  coun- 
try or  district  by  the  law  of  which  the  rights  of  the  surviving  spouse  with 
respect  to  the  children  is  settled  otherwise.  The  effect  of  the  above 
rule  extends  to  immovables  situated  abroad.  This  is  subject  to  an  ex- 
ception, however,  in  a  case  where  at  the  place  where  they  are  situated 
definite  prescriptions  are  established  with  reference  to  the  inheritance  : 
that  it  shall  pass  to  absolutely  no  other  heir  than  the  one  therein 
appointed,  and  an  alteration  of  this  provision  by  consensual  agreement 
is  forbidden. 


SAMUEL  V.  ARROUARD. 

Civil  Tribunal  of  Versailles.     1893. 

[Reported  21  Clunet,  544.] 

The  Tribunal.^  The  documents  produced,  which  are  not  disputed, 
prove  that  Dame  Girard-Kiener  and  her  husband  were  of  Swiss  nation- 
ality at  the  time  of  her  decease  at  Chalon,  Nov.  15,  1874.  They  were 
married  at  Lausanne  on  April  16,  1834,  without  any  preceding  marriage 
contract ;  and  consequently,  by  the  terms  of  the  legislation  of  the  Can- 
ton of  Vaud  (Art.  1085),  the  matrimonial  regime  to  which  they  were 
subject  was  without  community  of  goods.  After  having  lived  for  some 
time  at  Lausanne  the  Girard-Kieners  went  to  live  at  Chalon  in  the  year 
1848,  and  Dame  Girard  died  there  on  Nov.  15,  1874.  At  no  period  of 
their  common  life  did  either  of  the  spouses  show  an  intention  of  cliang- 
ing  nationality.  No  matrimonial  capital  was  furnished  by  either  of  them, 
and  in  the  course  of  the  marriage  neither  of  tliem  recei\ed  property  by 
inheritance  or  by  gift.  Under  these  circumstances,  and  in  conformity 
with  Art.  1395  of  the  Civil  Code  and  Art.  1046  of  the  Code  of  Vaud 
(which  both  provide  that  a  matrimonial  regime  once  adopted  shall  not 
change),  the  plaintiff  claims  that  the  regulation  of  the  succession  of 
Dame  Girard  and  of  their  common  property  is  governed  not  by  the 
provisions  of  the  French  Civil  Code,  but  by  those  of  the  laws  of  Vaud, 
at  least  such  as  expressly  provide  for  the  case. 

It  is  quite  evident  that  the  regime  without  community  of  goods,  as  it 
is  practised  in  the  Canton  of  Vaud,  is  in  no  way  incompatible  with  the 
provisions  of  the  French  Law,  wliich  ecjually  permits  the  n'-gime  with- 
out community  of  goods,  or  that  of  separation  of  goods.  Consequently 
the  administration  and  distribution  of  the  common  property  of  the 
Girard-Kieners,  which  took  place  on  May  13,  1875.  under  tlie  direction 
of  Deguingaud,  Notary  at  Chalon,  between  Girard  and  his  two  children, 

1  J'art  of  the  ophiion  is  omitted.  —  Ei>. 


252  SAMUEL   V.    ARROUAHD.  [CHAP.  VII. 

may  justly  be  attacked  by  Girard,  since  they  were  erroneously  curried 
out  upon  the  basis  of  the  French  legal  community,  when  they  should 
have  been  regulated  by  the  law  of  Vaud.   .   .   . 

The  defendants  claim  that  in  any  case  the  immovable  property  sit- 
uated at  Chalon,  the  title  of  which  is  in  the  name  of  Girard,  ought  in 
the  settlement  of  the  marital  property-,  in  conformity  with  Art.  3,  §  2, 
of  the  Civil  Code,  to  be  governed  by  the  French  law  rather  than  by 
foreign  legislation,  and,  consequentl}',  to  be  divided  upon  the  basis  of 
the  legal  communit}-.  But  since  it  has  been  decided  b^'  an  unbroken 
line  of  cases  that  agreements  which  have  notliing  contrai-y  to  French 
law,  to  public  order,  and  to  good  morals,  should  be  executed  with  re- 
gard to  movables  and  immovables  alike,  and  since  the  provisions  of  a 
foreign  law  excluding  from  matrimonial  community  immovable  property- 
acquired  by  the  spouses  during  the  marriage  is  in  no  way  opposed  to 
the  general  provisions  of  the  French  law,  which  permits  the  regime 
without  community  of  goods,  no  distinction  can  be  made  b}-  reason 
of  the  nature  of  the  property  acquired  by  the  spouses  during  their 
marriage.  .  .  . 


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